A  HISTORY  OF  POLITICAL  THEORIES 


FROM  LUTHER  TO   MONTESQUIEU 


A  HISTORY  OF  POLITICAL 
THEORIES 

FROM  LUTHER  TO  MONTESQUIEU 


BY 

WILLIAM   ARCHIBALD   DUNNING,  PH.D.,  LL.D. 

LIEBBR  PROFESSOR  OF  HISTORY  AND   POLITICAL  PHILOSOPHY 
IN  COLUMBIA  UNIVERSITY 


THE   MACMILLAN   COMPANY 

LONDON:  MACMILLAN  &  CO.,  LTD. 

1905 
All  rights  reserved 


COPYRIGHT,  1905, 
BY  THE  MACMILLAN  COMPANY. 

Set  up  and  electrotyped.     Published  August,  1905. 


NortnootJ 

J.  8.  Cashing  &,  Co.  —  Derwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


PREFACE 

THIS  volume  carries  forward  to  the  middle  of  the 
eighteenth  century  the  work  begun  in  the  History 
of  Political  Theories,  Ancient  and  Mediaeval^  pub- 
lished three  years  ago.  Save  for  slight  modifica- 
tions to  meet  the  special  requirements  of  the 
modern  period,  the  scope  and  method  announced  in 
the  earlier  volume  have  been  adhered  to.  In  con- 
nection with  the  present  work  the  author  desires 
to  make  grateful  acknowledgment  to  his  colleagues, 
Professors  Herbert  L.  Osgood  and  James  H.  Rob- 
inson, for  useful  suggestions  on  particular  parts  of 
the  manuscript  which  they  have  read  ;  to  Mr.  Francis 
W.  Coker,  University  Fellow  in  Political  Philosophy 
at  Columbia,  for  verification  of  references  and  bib- 
liography; and  especially  to  Professor  C.  E.  Mer- 
riam,  of  the  University  of  Chicago,  who  has  read 
the  proofs  of  the  entire  volume  and  has  rendered 
inestimable  service  by  his  sound  critical  judgment 
and  his  accurate  scholarship. 

LAKE  SUNAPEE,  N.H. 
July  4,  1905. 


CONTENTS 

CHAPTER  I 
THE  REFORMATION 

PAGE 

1.  General  Character  of  the  Protestant  Reformation  ...  1 

2.  Martin  Luther 7 

3.  Melanchthon 14 

4.  Zwingli 23 

5.  John  Calvin 2'6 

6.  Summary 33 

References 38 

CHAPTER  II 
ANTI-MONARCHIC  DOCTRINES  IN  THE  SIXTEENTH  CENTURY 

1.  The  Religious  Wars 39 

2.  The  Vindicice  contra  Tyrannos 46 

3.  George  Buchanan 56 

4.  Johannes  Althusius .        .        .        .        .        .        .        .        .61 

5.  Mariana    ...........  67 

6.  General  Influence  of  the  Anti-monarchic  Theories          .        .  76 
References 80 

CHAPTER  III 
JEAN  BODIN 

1.  Method  and  First  Principles  of  his  Politics     ....      81 

2.  Origin  and  Social  Basis  of  the  State 87 

3.  Citizenship 93 

4.  The  Theory  of  Sovereignty 96 

5.  Forms  of  State  and  Government      ....••     103 

6.  Theory  of  Revolutions '•        .108 

7.  Principles  of  Government  and  Administration       .        .        .114 

8.  Bodin's  Place  in  the  History  of  Political  Theories          .        .     120 
References  ...-....••     123 


viii  CONTENTS 

CHAPTER  IV 
CATHOLIC  CONTROVERSIALISTS  AND  JURISTS 

PAGE 

1.  The  Catholic  Reformation       .......  124 

2.  Bellarmin  and  Barclay     .......   *     .  128 

3.  Spanish  Jurists  and  Moralists  .......  132 

4.  Suarez  on  Law          .........  135 

5.  Suarez  on  Government     ........  142 

6.  Campanella       ..........  149 

References         ..........  152 

CHAPTER  V 
HUGO  GROTIUS 

1.  Protestant  Precursors  of  Grotius      ......  153 

2.  The  General  Conditions  of  his  Work      .        .        .        .        .157 

3.  The  Law  of  Nature          ........  164 

4.  The  Law  of  Nations         ........  171 

5.  Theory  of  the  State  and  of  Sovereignty  .....  179 

6.  The  Place  of  Grotius  in  the  History  of  Political  Theory        .  187 
References         ..........  191 

CHAPTER  VI 

ENGLISH  POLITICAL  PHILOSOPHY  BEFORE  THE  PURITAN 
REVOLUTION 

1.  Development  of  the  Constitution     ......  192 

2.  The  Common  Law    .........  197 

3.  Sir  John  Fortescue   .........  201 

4.  The  Tudor  Century:  More;  Hooker       .....  205 

5.  James  I  and  his  Contemporaries      ......  212 

References        .....        .....  217 


CHAPTER 
.  THEORIES  OF  THE  PURITAN  REVOLUTION 

1.  Political  Doctrine  of  the  Parliament  Party     .        .        .        .219 

2.  Ecclesiastical  Doctrine  of  the  Parliament  Party      .        .        .     223 

3.  The  Development  of  Independency  ......     229 

4.  ,  Political  Theory  of  the  Commonwealth  .....    234 


CONTENTS  ix 

PAGE 

5.  The  Political  Ideas  of  Milton 241 

6.  The  Theories  of  Harrington 248 

7.  Anti-republican  Doctrine :  Filmer 254 

References 262 

CHAPTER  VIII 
THOMAS  HOBBES 

1.  Character  and  Method  of  his  Philosophy         .        .                .  263 

2.  The  State  of  Nature 268 

3.  Natural  Rights  and  Natural  Law 272 

4.  The  Origin  of  the  Commonwealth 276 

5.  Sovereignty  and  Liberty 281 

6.  Government  and  Law 290 

7.  State  and  Church •     .        .296 

8.  Hobbes's  Place  in  the  History  of  Political  Theory .        .        .  300 
References 304 

CHAPTER  IX 
CONTINENTAL  THEORY  DURING  THE  AGE  OF  Louis  XIV 

1.  General  Condition  of  Continental  Politics       ....    305 

2.  Spinoza 309 

3.  Pufendorf .        .        .318 

4.  Bossuet 325 

5.  Minor  Currents  in  Continental  Theory 331 

References 334 

CHAPTER  X 
JOHN  LOCKE 

1.  Practical  Politics  of  the  English  Revolution  ....    335 

2.  Relation  of  Locke  to  Contemporary  Theory  and  Practice       .    340 

3.  The  State  of  Nature  and  Natural  Rights         .        .        .        .345 

4.  The  Social  Contract 349 

5.  Government :  Separation  of  Powers 354 

6.  The  Right  of  Revolution 359 

7.  Locke's  Place  in  the  History  of  Political  Theory    .        .        .363 
References 368 


X  CONTENTS 

CHAPTER  XI 
FROM  LOCKE  TO  MONTESQUIEU 

PAGE 

1.  Intellectual  and  Political  Conditions 369 

2.  German  Theories :  Wolff ;  Frederick  the  Great      .        .        .374 

3.  British  Theory :  Bolingbroke  and  Hume        ....  377 

4.  Italian  Theory :  Vico 384 

References 390 

CHAPTER  XII 
MONTESQUIEU 

1.  General  Conditions  of  his  Work 391 

2.  Method  and  First  Principles 394 

3.  Forms  of  Government  according  to  Nature  and  Principle      .  399 

4.  Transformation  of  Governments 406 

5.  Theories  of  Liberty  and  Slavery 409 

6.  Theory  of  Climate  and  Physical  Environment        .        .        .  418 

7.  Social,  Economic,  and  Religious  Policy 422 

8.  Summary  and  Conclusion 428 

References .434 

BIBLIOGRAPHY 435 

INDEX                                                             449 


A  HISTOKY  OF  POLITICAL  THEOEIES 

FROM  LUTHER  TO  MONTESQUIEU 


POLITICAL   THEORIES 

CHAPTER  I 

THE   REFORMATION 

1.  General  Character  of  the  Protestant  Reformation 

IN  the  sixteenth  century  political  theory,  like  all 
other  phases  of  intellectual  activity,  was  dominated 
by  the  influences  of  the  great  Protestant  revolt. 
Primarily  the  Reformation,  as  a  philosophical  phe- 
nomenon, was  theological  in  character.  It  was  con- 
cerned with  the  relations  of  man  to  God  and  with 
the  ways  and  means  by  which  men  were  to  be  assured 
of  eternal  happiness  in  the  world  to  come.  As  the 
issue  was  made  up  at  the  outset  by  Luther,  it  con- 
sisted essentially  in  the  relative  importance  of  Jaith. 
and  of  works  as  a  means  of  justification ;  that  is,  in 
the  question  whether  the  saving  grace  of  God  was 
manifested  chiefly  by  the  inward  spiritual  transforma- 
tion of  the  individual,  or  rather  by  conformity  to  the 
prescriptions  which  the  church  declared  essential  to 
sanctity. 

The  controversies  that  developed  out  of  this  ques- 
tion soon  brought  into  the  foreground  the  ecclesiasti- 
cal phase  of  the  reforming  movement.  Condemned 
by  the  recognized  authorities  of  the  church,  the  Re- 

VOL.  II.  —  B  1 


2  POLITICAL  THEORIES 

formers  challenged  the  right  of  those  authorities  to 
decide  the  question,  and  raised  the  issue  as  to  the  na- 
ture and  constitution  of  the  Christian  church.  The  an- 
cient authority  of  the  Roman  See  was  flatly  repudiated  \ 
but  further  than  that,  not  even  a  general  council  was 
recognized  as  qualified  to  give  final  decisions  on  ques- 
tions of  faith  or  worship,  and  the  bonds  of  ecclesiasti- 
cal organization  and  discipline  were  wholly  dissolved 
by  the  doctrine  that  the  individual  conscience,  inter- 
preting the  word  of  God  in  the  Scriptures,  was  the 
sole  and  conclusive  criterion  of  Christian  duty. 

Finally,  the  demoralizing  and  atomistic  tendencies 
that  were  manifestly  involved  in  this  latter  dogma 
found  a  corrective  in  the  ethical  element  which 
was  conspicuous  throughout  the  philosophy  of  the 
Reformers.  That  a  rigid  observance  of  the  rules  of 
common  morality  as  prescribed  in  the  Decalogue  was 
essential  to  a  Christian  life,  was  a  cardinal  feature  of 
all  the  new  teaching.  Whereasjihe  old  church  had 
tended  to  put  the  emphasis  on  the  penance  for 
sin  after  it  was  committed,  the  Reformers  laid  the 
stress  on  not  committing  it.  The  whole  attitude  of 
the  Reformers  in  this  respect  made  for  social  better- 
ment, and  was  responsible  for  that  reunion  of  moral- 
ity with  religion  which  has  characterized  both  the 
Catholic  and  the  Protestant  churches  ever  since  the 
separation. 

While  the  theory  of  the  Reformationjb^us^embraced 
theologicalT^ccIesiastical  and  ethical  elements-, 
its  practical  application /Involved  questions  of  most 
far-reaching  political  and  social  import.  As  the  doc- 


THE  PROTESTANT  REFORMATION  3 

trine  of  the  Reformers  was  developed  and  spread  over 
Europe,  the  secular  governments  took  but  languid 
interest  in  the  theological  phase  of  the  movement ; 
but  when  the  matter  of  renouncing  the  authority  of 
the  Pope  came  up,  there  was  no  lack  of  concern. 
Two  questions  had  to  be  settled  in  every  country 
which  adopted  the  Reform :  (1)  What  disposition 
should  be  made  of  the  ecclesiastical  property,  reve- 
nues and  jurisdiction  in  which,  under  the  old  system, 
the  Roman  See  had  had  so  substantial  an  interest  ?  and 
(2)  What  limit,  if  any,  should  be  set  to  the  variations 
in  creed  and  worship  which,  on  the  principle  of  indi- 
vidual interpretation  of  the  Scriptures,  were  assum- 
ing fantastic  and  revolutionary  forms  ?  The  first  of 
these  questions  the  government  generally  answered 
by  appropriating  to  itself  a  large  part  of  the  property 
and  jurisdiction,  and  assigning  the  remainder  to  an 
ecclesiastical  organization  which  was  substantially  a 
dependency  of  the  secular  authorities.  Henry  VIII 
of  England,  as  is  well  known,  effected  the  ecclesiasti- 
cal severance  from  Rome  without  any  formal  devia- 
tion from  theological  unity,  and  under  the  influence 
of  motives  that  were  quite  devoid  of  religious  or 
moral  quality.  Nor  can  it  be  doubted  that  the  Ger- 
man and  other  princes  who  supported  the  Reformation 
were  actuated  at  least  as  much  by  the  prospect  of 
enhancing  their  own  power  and  dignity  as  by  any 
profound  conviction  of  the  abstract  righteousness  of 
the  Reformers'  doctrine.  The  ground  had  been  pre- 
pared for  the  separation  from  Rome  by  the  long- 
standing abuses  of  papal  patronage  and  jurisdiction, 


4  POLITICAL  THEORIES 

and  the  now  inveterate  consciousness  among  the 
peoples  of  the  North  that  they  were  being  financially 
exploited  by  an  Italian  potentate  whose  policy  was 
largely  secular: 

As  to  the  second  question^  it  had  early  to  be  ad- 
mitted by  the  Reformers  themselves  that  some  line 
must  be  drawn  beyond  which  the  vagaries  of  private 
judgment  in  interpreting  the  Scriptures  .must  not  be 
tolerated:  The  beginning  of  the  Lutheran  movement 
was  quickly  followed  by  the  appearance  of  many 
Reformers  who  found  in  the  Word  of  God  doctrines 
that  were  subversive  of  the  ancient  social  and  politi- 
cal order,  as  well  as  of  the  ancient  ecclesiastical 
system.  From  the  theory  of  baptism  which  was 
preached  by  some  of  these  sectaries  the  term  "  Ana- 
baptist "  came  to  be  applied  generically  to  all  of  them. 
These  were  the  YSLsohoErm^or  and  the 


various  shades  of  extravagance  which  prevailed 
among  them  —  each  firmly  grounded  by  its  votaries 
on  the  Bible  —  included  such  extremes  as  are  sug- 
gested to-day  by  the  names  of  Quakers  and  Anar- 
chists, with  all  the  forms  of  socialism,  communism 
and  other  heresy  that  lie  between.  Against  these 
extremists  the  leaders  of  the  Reform  felt  called 
upon  to  take  a  decided  position,  and  denunciation  of 
Anabaptist  doctrine  is  conspicuous  throughout  the 
works  of  Luther,  Zwingli  and  Calvin.  In  1524-1525 
a  serious  insurrection  of  the  peasants  in  southern  and 
central  Germany  was  attended  by  demonstrations 
by  Anabaptist  agitators,  and  was  the  subject  of  a 
violent  diatribe  by  Luther  against  the  insurgents. 


THE   REFORMERS  AND  THE   PRINCES  5 

Ten  years  later  an  especially  savage  outbreak  of 
fanaticism  in  Miinster,  Westphalia,  revealed  the  full 
barbarism  to  which  the  triumph  of  the  extremists 
would  lead.  It  was  the  merest  matter  of  self-preser- 
vation that  the  moderate  Reformers  should  abso- 
lutely dissociate  their  movement  from  these  sectaries ; 
hence  support  of  the  established  political  power  in  all 
that  did  not  imply  recognition  of  the  Papacy  was  the 
uniform  practice  of  the  leaders.  This  strict  alliance 
for  common  defence  between  the  governments,  en- 
joying the  spoils  of  the  old  church,  and  the  Reform- 
ers, preaching  a  non-political  life,  is  one  of  the 
characteristic  features  of  the  earliest  period  of  the 
Reformation.  An  obvious  practical  consequence  was 
the  further  exaltation  of  the  power  and  dignity  of 
the  secular  governments  and  particularly  of  the 
monarchs.  The  Reformation  clearly  promoted,  in 
the  first  half  of  the  sixteenth-eentury,  the  develop- 
ment of  absolute- monarchy. 

The  middle  of  this  century  marks  fairly  well  the 
end  of  the  first  stage  in  the  religious  transformation 
of  Europe.  By  that  time  the  Lutheran  phase  of  the 
movement  had  achieved  its  most  distinctive  work, 
and  the  Calvinistic  phase  was  about  to  assume  the 
greatest  prominence.  The  geographical  limits  of  the 
secession  from  Rome  were  pretty  definitely ,  deter- 
mined. In  Germany  Charles  V,  after  long  subordi- 
nating the  matter  to  the  interests  of  his  policy 
against  France  and  the  Turks,  had  finally  assumed 
the  defence  of  the  old  order  in  religion,  and  proceeded 
to  the  subjugation  of  the  Protestants.  He  was  beaten, 


6  POLITICAL  THEORIES 

however,  though  more  on  political  than  on  religious 
grounds ;  and  by  the  Religious  Peace  of  Augsburg, 
in  1555,  the  Lutheran  princes  were^gecured  in  the 
right  to  maintain  within  their  dominions  the  creed  of 
their  choicer  Northern  Germany,  roughly  speaking, 
thus  became  constitutionally  Protestant.  The  Scan- 
dinavian states  had  already  assumed  formally  that 
character.  Western  and  southwestern  Germany  was 
strongly  Reformed  and  Calvinistic  in  faith,  but  this 
creed  was  not  recognized  in  the  Peace  of  Augsburg, 
and  hence  had  no  sanction  in  the  law  of  the  Empire. 
A  considerable  part  of  Switzerland  was  thoroughly 
Zwinglian,  while  the  Reformed  doctrine  had  a  strong 
hold  on  France  and  the  Netherlands,  though  lacking 
in  either  the  recognition  of  the  law.  In  England  the 
reign  of  Edward  VI  (1547-1553)  gave  formal  effect  to 
the  Protestant  doctrine  which  Henry  VIII  had  never, 
tolerated,  but  which  was  clearly  acceptable  to  the 
most  influential  demerits  of  the  population ;  and  in 
Scotland,  finally,  it  was  in  1555  that  John  Knox, 
fresh  from  his  training  under  Calvin  at  Geneva, 
began  that  energetic  propaganda  which  soon  enabled 
the  hitherto  halting  and  timid  Scottish  Reformers 
to  make  their  country  a  mainstay  of  Presbyterianism. 
The  remainder  of  Europe  was  secure  from  serious 
Protestant  influence,  and  the  Papacy  had  by  the 
middle  of  the  sixteenth  century  entered  upon  the 
policy  of  reform  and  aggression  by  which  it  put  an 
end  to  the  further  sweep  of  Protestantism.  The 
Council  of  Trent,  in  a  checkered  career  beginning  in 
1545,  had  put  dogma  and  worship  upon  much  firmer 


LUTHER'S  POLITICAL  DOCTRINES  7 

grounds  than  ever  before ;  the  Jesuits  had  entered 
upon  their  efficient  and  energetic  career;  and  thus 
the  Catholic  Reformation  had  been  definitely  begun. 
With  the  forces  of  the  old  order  and  the  new  in  fairly 
equal  combat,  the  relation  of  the  theories  of  the 
religious  parties  to  politics  gradually  changed : 
whereas  in  the  first  stage  of  the  movement  the 
Reformers'  doctrines  were  subsidiary  to  practical 
and  theoretical  politics,  in  the  later  stage  they 
assumed  the  controlling  part.  But  before  consider- 
ing this  situation,  let  us  examine  the  attitude  of  the 
great  men  who  inaugurated  the  Reform. 

2.   Martin  Luther 

But  two  doctrines  of  political  significance  are 
unmistakably  derivable  from  Luther's  voluminous 
writings :  first,  the  absolute  distinction  in  kind  be- 
tween spiritual  and  secular  interests  and  authority; 
and  second,  the  Christian  duty  of  passive  submission 
to  the  established  social  and  political  order.  And 
even  these  two  are  at  times  fluctuating  and  obscure  in 
the  shiftings  of  the  Reformer's  policy.  For  Luther's 
part  in  the  movement  which  made  him  famous  was 
that  of  an  agitator  rather  than  a  philosopher.  He 
was,  at  the  inception  of  the  movement,  as  far  as 
possible  from  any  large  and  coherent  project  of  even 
theological  reconstruction.  The  correction  of  a  few 
obvious  abuses  •  was  the  limit  of  his  ambition  at 
Wittenberg,  and  there  are  abundant  evidences  of  his 
profound  astonishment  at  the  magnitude  of  the 
obstacles  which  gradually  appeared  in  his  way.  It 


8  POLITICAL  THEORIES 

was  in  surmounting  these  obstacles  that  his  charac- 
teristics as  an  agitator  became  manifest  —  brutelike 
vigor  and  much  resourcefulness  in  controversy,  and 
a  profound  susceptibility  to  the  currents  of  popular 
feeling  in  his  German  environment. 

The  denial  of  the  supremacy  of  the  Pope  in  the 
church  was  no  part  of  his  early  contention;1  but 
when  the  papal  legates  tried  to  browbeat  him  into 
unquestioning  submission,  and  Rome  at  last  issued  its 
condemnatory  bull  and  made  him  a  heretic,  he  took 
up  with  all  zeal  the  denunciation  of  the  Petrine 
dogma.  Every  form  of  attack  on  the  theoretical 
and  historical  supports  of  the  Papacy  that  had  been 
employed  by  Marsiglio  and  Ockam  was  pressed  by 
Luther  with  his  customary  vehemence,  and  at  the 
door  of  the  Roman  church  was  laid  the  responsibility 
for  not  only  a  high-handed  usurpation  of  temporal 
power  and  prestige,  but  also  a  gross  perversion  of 
doctrine  and  ceremonial.  He  demanded  a  radical  re- 
form of  the  whole  system,  based  on  the  abolition  of 
all  the  most  characteristic  features  of  the  mediaeval 
organization  and  practice,  and  a  recurrence  to  the 
ideas  and  institutions  of  patristic  Christianity.  The 
instrument  which  he  proposed  for  accomplishing  this 
reform  was  a  general  council ;  but  the  whole  tenor 

1  See  his  Resolutio  de  Potestate  Papa  (Opera  Latina,  Vol.  XXXIV,  p. 
296).  In  this  he  concedes  that  the  Pope  is  de  facto  the  head  of  the 
church  and  must  be  recognized  as  such;  but  he  denies  that  this 
primacy  is  Scriptural  or  of  divine  right,  and  he  vehemently  assails  the 
extreme  pretensions  set  up  for  the  Papacy  in  the  Canon  law.  The 
offensive  decretals  he  ascribes,  not  to  the  Popes  themselves,  but  to 
their  courtiers ;  e.g.  "  Innocentius  III  sive  familiaris  eius  scriba ;  " 
"  notarius  Papse ; "  "  is  scriptorculus  Romanus." 


LUTHER'S  DEMANDS  FOR  REFORM  9 

of  the  powerful  pamphlet  in  which  he  most  distinctly 
formulated  his  demand.  To  the  Christian  NoUlity  of 
the  German  Nation,1  shows  that  his  purpose  was  to 
find  a  sure  support  in  German  national  sentiment  as 
against  the  Italians,  and  that  he  looked  to  action  by 
the  German  governments  for  the  success  of  the  move- 
ment he  had  in  mind.  The  twenty-seven  points  in 
which  he  summarizes  the  reforms  that  must  be 
effected  "  by  secular  power  or  general  council "  in- 
clude the  abolition~bf  practically  all  the  revenues 
and  all  the  jurisdiction  of  the  Pope  in  regions  out- 
side the  estates  of  the  Roman  church,  and  the  rec- 
ognition and  enforcement  of  the  principle  that 
whatever  involves  money,  estate  or  any  material 
interest  shall  be  left  to  the  secular  authorities.2  In 
the  faith  and  charity  that  are  the  essence  of  Chris- 
tianity he  holds  that  all  Christians  are  equal.  Pope 
and  bishop  and  priest  are  merely  officers  for  the  regu- 
lation and  promotion  of  Christian  living,  and  their 
duties  in  no  way  involve  exceptional  relations  to  the 
political  order.  As  Luther  reflected  upon  this  con- 
ception, the  whole  system  of  the  mediaeval  church 
took  in  his  mind  the  form  of  a  deliberately  devised 
and  craftily  executed  project  for  the  acquisition  of 
wealth  and  political  power  by  the  papal  court.  The 
Canon  law,  with  which  his  adversaries  confronted 

1  An   den   christlichen   Adel  deutscher   Nation    von   des   christlicher 
Standes  Besserung.     Modernized  German  text  in    Lemme,  Die  drei 
grossen  Reformations-schriften  Luthers  vom  Jahre  1520. 

2  "  Was  Geld,  Gut  und  Leib  oder  Ehre  anbetrifft,  den  weltlichen 
Richtern  lassen  ;  geistlich  Gut  ist  nicht  Geld  noch  leiblich  Ding,  son- 
dern  Glaube  und  gute  Werke." 


10  POLITICAL  THEORIES 

him  at  every  turn,  he  regarded  as  merely  the  body  of 
doctrine  in  which  the  conspirators  had  given  their 
project  a  legal  form,  and  had  shamelessly  confounded 
things  material  with  things  divine.  As  an  essential 
feature  of  the  return  to  the  true  system  he  demanded, 
therefore,  the  total  repudiation  of  the  Canon  law, 
with  all  the  authority  and  jurisdiction  based  upon  it.1 

Luther  did  not,  however,  deny  the  necessity  of 
some  system  of  discipline  for  the  maintenance  of  the 
true  order  in  worship  and  belief.  But  he  was  never 
as  successful  in  construction  as  he  was  in  destruction. 
Though  the  idea  that  religious  life  was  to  be  regu- 
lated by  means  that  were  purely  spiritual  was  sedu- 
lously adhered  to,  the  practical  outcome  of  the 
distinctively  Lutheran  reform  was  the  appropriation 
by  the  secular  authorities  of  much  of  that  paramount 
influence  in  ecclesiastical  affairs  which  was  taken 
away  from  the  Papacy.  The  tendency  in  this  direc- 
tion received  strong  confirmation  from  the  emphasis 
with  which  Luther  asserted  the  duty  of  passive 
obedience. 

This  second  clear  element  in  Luther's  political 
creed  is  particularly  apparent  in  his  conception  of 
the  divine  character  of  secular  government,  and  in 
his  attitude  toward  the  rebellious  peasants  and  the 
fanatical  Anabaptists.  The  definitive  breach  with 

1  His  twenty-fifth  point  in  the  address  to  the  Christian  nobility  is 
that  the  universities  need  "eine  guten  starken  Reformation,"  one 
element  of  which  is  that  the  study  of  the  Canon  law  shall  be  "zu 
Grunde  ausgetilgt."  The  importance  he  attached  to  this  matter  was 
particularly  expressed  in  burning  a  copy  of  the  Canon  law  together 
with  the  Pope's  bull  of  excommunication.  Cf.  Kostlin,  Martin  Luther, 
Vol.  I,  p.  405. 


LUTHER  ON  PASSIVE  OBEDIENCE  11 

Rome  and  the  anathema  against  Luther  for  heresy 
soon  brought  up  the  practical  question  as  to  the  duty 
of  the  numerous  adherents  of  his  doctrine  in  states 
whose  princes  undertook  to  enforce  the  Pope's  decree. 
In  1523  this  subject  was  treated  by  Luther  in  his 
work  entitled,  Of  Secular  Authority :  How  far  is  Obe- 
dience due  to  it  f l 

The  doctrine  of  this  work  is  based  by  Luther  ex- 
clusively on  the  Bible,  and  is  that  of  the  church 
fathers,  sharpened  by  something  of  that  contempt 
for  secular  rulers  that  was  manifested  by  their  papal 
adversaries  in  the  Middje  Ages.  Secular  power,  he 
holds,  is  sanctioned  by  God.  It  is  necessary  because 
the  great  majority  of  mankind  are  not  Christians. 
For  Christians  the  guidance  of  the  Holy  Spirit  is  all 
that  is  required  ;  but  for  those  that  lack  this  guidance 
the  sword  of  the  secular  ruler  is  necessary  in  order 
that  external  peace  and  order  may  exist.  Submission 
to  civil  government  is  directly  enjoined  upon  Chris- 
tians by  the  Scriptures,2  and  the  basis  for  this  injunc- 
tion is,  not  that  Christians  need  such  government  for 
themselves,  but  that  they  must  do  what  is  for  the 
good  of  others.  This  altruistic  principle  is  very  in- 
geniously adapted  to  the  support  of  Luther's  view 
that  the  duty  of  the  Christian  subject  extends  to  bear- 
ing arms  for  his  sovereign.  On  this  point  the  argu- 

1  Von  weltlicher  Oberkeit,  wie  weit  man  ihr  Gehorsam  schuldig  sei. 
Luther's  Werke  (Weimar),  Vol.  XI,  p.  245. 

2  Luther  depends  upon  the  texts  which  had  been  employed  through- 
out the  Middle  Ages,  but  laid  especial  stress  upon  Gen.  ix,  6  :  "  Whoso 
sheddeth  man's  blood,  by  man  shall  his  blood  be  shed,"  as  expressing 
the  divine  sanction  of  governmental  power. 


12  POLITICAL  THEORIES 

ment  labors  a  little  in  dealing  with  the  non-militant 
spirit  of  the  New  Testament,  but  he  falls  back  on  the 
doctrine  that  while  the  Christian  may  not  draw  the 
sword  for  himself,  he  must  do  so  for  the  good  of 
others,  and  must  contribute  his  share  to  restrain 
wickedness  and  protect  the  reign  of  righteousness. 
The  duty  of  the  Christian  subject  to  obey  his  prince 
or  to  fight  for  him  ceases,  however,  when  the  prince 
is  manifestly  in  the  wrong ;  but  it  holds  good  in  all 
cases  of  doubt  as  to  the  right  or  wrong  of  the  cause.1 
As  to  the  power  of  the  civil  government  over  mat- 
ters of  belief,  Luther,  interested  primarily  in  the  per- 
secution of  his  followers,  takes  strong  ground  against 
any  extension  of  secular  power  into  the  field.  Only 
what  is  corporeal  and  outward  can  be  affected  by  the 
laws  of  the  state ;  a  legal  injunction  to  believe  so  and 
so  is  folly.  Belief  can  be  determined  or  affected  only 
by  persuasion  and  by  the  secret  power  of  God. 
Hence  heresy  cannot  be  extirpated  by  sword  or  fire 
or  water ;  such  means  only  confirm  it.  The  prevail- 
ing system  precisely  •  inverts  the  true  functions  of 
prince  and  bishop.  The  bishops  neglect  their  duties 
as  teachers  and  call  upon  the  princes  to  root  out 
heresy;  while  the  princes  leave  the  punishment  of 
usury,  murder  and  theft  to  the  bishops  and  waste 
their  time  in  seeking  to  preserve  the  faith.  "  They 
rule  the  souls  with  the  sword  and  the  body  with 
words ;  secular  princes  govern  as  spiritual,  and  spir- 

1  Where  the  case  is  doubtful,  it  must  be  regarded  as  subject  to  the 
secret  will  of  God,  who  for  his  own  purposes  relieves  the  faithful  of 
responsibility. 


LUTHER  ON  SECULAR  RULERS  13 

itual  princes  as  secular."  But  nothing  better  could 
be  expected  under  the  most  prevalent  political  con- 
ditions ;  for;  Luther  roundly  declares,  princes  are 
usually  "the  biggest  fools  or  the  worst  knaves  on 
earth."  1  Their  function  is  merely  that  of  jailers  and 
hangmen  for  God,  whose  majesty  requires  that  even 
the  meanest  of  his  servants  shall  be  high-born  and 
wealthy.  A  wise  prince  or  a  pious  prince  is  a  miracle, 
and  attests  the  most  exceptional  favour  of  God.2 

These  contemptuous  opinions  of  the  holders  of 
political  power  in  no  way  qualified  Luther's  conten- 
tion that  the  duty  of  the  subjects  was  obedience.  On 
this  ground  he  based  his  fierce  denunciation  of  the 
peasants  who  rose  against  their  lords  in  western  Ger- 
many; and  this,  together  with  his  doctrine  that  secu- 
lar government  was  divinely  established,  animated 
his  fervour  against  the  Anabaptists  when  they  sought 
to  carry  out  into  practice  his  own  idea  that  Christians 
did  not  need  any  human  regulating  control.  The 
proceedings  of  these  fanatics  put  to  the  severest  test 
Luther's  principles  as  to  the  treatment  of  heresy,  and 
forced  him  to  recognize  that  practically  the  civil 
authorities  must  fix  a  limit  of  toleration  for  subver- 
sive religious  beliefs,  and  must  use  force  when  the 
limit  is  passed. 

1  Von  anbegynn  der  wellt  gar  eyn  seltsam  vogel  1st  umb  eyn  klu- 
gen  fursten,  noch  viel  seltsamer  umb  eyn  frumen  fursten.     Sie  sind 
gemeynlich  die  grosten  narren  odder  die  ergisten  buben  auff  erden. 
—  Werke  (Weimar),  XT,  267-268. 

2  It  is  hardly  surprising  that  these  opinions  were  made  the  basis  of 
demands  from  the  Saxon  Duke  George  that  Luther  be  disciplined. 
Kostlin,  I,  631. 


14  POLITICAL  THEORIES 

As  time  went  on,  the  trend  of  things  in  Germany 
toward  a  definite  rupture  between  the  Emperor  and 
the  Protestant  princes  caused  Luther  to  weaken  at 
last  in  his  doctrine  of  passive  obedience:  He  said 
that  the  issue  between  princes  and  Emperor  was 
largely  one  of  constitutional  law,  where'  the  jurists 
could  decide  better  than  the  theologians ;  but  at  the 
same  time  he  set  up,  tentatively  and  with  obvious 
hesitation,  the  plea  that,  as  to  purely  temporal  mat- 
ters, self-defence  was  the  right  of  a  Christian,  and 
particularly  so  in  case  of  tyranny.  Martyrdom  had 
been  a  Christian  duty  under  Diocletian ;  but  Charles 
V  was  not  an  absolute  monarch  like  Diocletian;  and 
hence  the  time  for  martyrdom  was  past : 1  if  the  laws 
that  bind  the  Emperor  are  disregarded  by  him,  sub- 
mission is  no  longer  a  duty  of  his  subjects.  In  these 
modifications  of  the  earlier  Lutheran  teaching  there 
is  the  germ  of  the  theory  which  ultimately  dominated 
all  the  Protestants  and  the  Catholics  as  well,  and  de- 
termined the  course  of  political  philosophy  during  the 
long  period  of  religious  wars. 

3.   Melanchthon 

Philip  Melanchthon,  the  young  disciple  whom 
Luther  loved,  was  of  a  wholly  different  intellectual 
make-up  from  his  master.  Luther  was  the  rough, 
aggressive,  fearless  German,  who  never  got  far  away 
from  the  mental  habit  of  the  mediaeval  monk ;  Melanch- 
thon was  refined,  conciliatory  and  timid,  and  deeply 
imbued  with  that  humanistic  spirit  which  was  at  war 

1  Table  Talk,  trans,  by  Hazlitt,  sec.  828,  p.  333. 


MELANCHTHON  15 

with  everything  mediaeval  in  northern  Europe.  The 
classical  learning  of  Melanchthon  was  most  extensive 
and  his  Latin  style  was  a  marvel  of  lucidity  and 
grace.1  Luther,  in  assailing  the  theology  of  the 
Romanists,  included  in  the  sweep  of  his  denunciation 
the  whole  Aristotelian  philosophy  which  had  become 
so  closely  associated  with  that  theology;  Melanch- 
thon, on  the  contrary,  recurred  with  admiration  and 
confidence  to  Aristotle's  ethics  and  politics,  and  drew 
largely  from  them  in  formulating  a  system  that 
should  be  suitable  to  the  Reformed  faith.  But  though 
Melanchthon  was  moderate  and  scholarly  in  his  dis- 
position and  method,  and  well  adapted  to  the  task 
of  furnishing  the  Reformation  with  a  philosophy, 
nevertheless,  his  writings,  like  Luther's,  exhibit  the 
vacillation  and  incoherence  that  were  inevitable  in 
the  stress  of  ecclesiastical  revolution-  For  example, 
the  right  of  the  secular  authorities  over  matters  of 
faith  and  worship,  and  the  duty  of  subjects  to  obey 
their  lords,  assume  different  aspects  according  as  his 
discussion  concerns  primarily  Catholic  princes  and. 
Protestant  subjects,  or  Protestant  princes  and  Catho- 
lic subjects.  But  apart  from  such  topics,  which  were 
inseparably  associated  with  current  controversies, 
Melanchthon  sought  with  some  success  to  construct 
a  general  system  of  moral  and  political  philosophy 
that  should  be  of  universal  validity.  In  this  task 
he  was  true  to  Luther's  spirit  in  taking  the  Scriptures 

1  Luther's  judgment  on  Melanchthon  and  others  is  reported  to 
have  been  as  follows  :  "  Res  et  verba  Philippus  [Melanchthon]  ;  verba 
sine  re  Erasmus ;  res  sine  verbis  Lutherus ;  nee  res  nee  verba  Carolo- 
stadius."  —  Table  Talk,  sec.  846. 


16  POLITICAL  THEORIES 

as  his  starting-point;  but  his  method  and  much  of 
his  doctrine  kept  him  close  in  the  line  of  the  Scho- 
lastics, and  he  employed  with  intelligence  and  dis- 
crimination even  the  Canon  law,  which  Luther  so 
vehemently  proscribed.1 

Melanchthon's  system  is  based  on  the  concept  of 
natural  right  (ius  natures)  or,  what  is  the  same  thing 
from  a  different  point  of  view,  natural  law  (lex  natu- 
rce).  This  law  consists  in  the  perception  which  God 
has  implanted  in  the  human  mind  of  the  practical 
principles  concerning,  first,  the  existence  of  God  him- 
self and  the  obedience  due  to  him ;  and  second,  the 
civil  institutions  which  promote  his  glory.2  The 
precepts  of  natural  law  are  summarized  in  the  Deca- 
logue, of  which  the  first  table  (i.e.  the  first  four  com- 
mandments) determines  man's  duty  toward  God,  and 
the  second  table  (the  last  six  commandments)  his  duty 
toward  his  fellow-man.  Whatever  institutions  may 
be  logically  based  on  the  Decalogue,  therefore,  are  in 
accordance  with  natural  right ;  but  this  direct  revela- 
tion of  God's  will  is  not  the  only  source  from  which 
the  law  of  nature  may  be  derived.  The  nature  or 
end  of  man  furnishes  immediately  and  without  dem- 
onstration certain  universal  principles  (sententice  com- 

1  Melanchthon's  treatises  on  ethics  and  politics  are  in  his  Opera 
(ed.  Bretschneider  and    Bindseil),  Vol.   XVI.      See   especially  the 
Philosophies  Moralis  Epitome,  Bk.  II,  and  the  commentaries  on  Aris- 
totle's Ethics  and  Politics. 

2  Notitia  principiorum  practicorum  et  conclusionum  quse  ex  illis 
necessaria    consequentia    ducuntur,   divinitus   insita    mentibus    hu- 
nianis,  uon  solum  de  moribus  civilibus,  sed  primum  de  agnitione  Dei 
et  obedientia  Deo  debita,  postea  de  moribus  civilibus  qui  referendi 
sunt  ad  hunc  finern,  ut  Deus  celebretur.  —  Opera,  XVI,  384. 


MELANCHTHON  17 

munes)  —  such,  for  example,  as  that  man  is  adapted 
to  social  life  —  from  which  it  is  possible  to  derive  by 
reasoning  the  practical  rules  of  right  living.  What- 
ever may  be  logically  deduced  from  these  principles 
of  human  nature,  therefore,  must  be  considered  as 
included  under  natural  law  as  well  as  under  the  law 
of  God.1  It  is  the  business  of  philosophy  —  as  dis- 
tinct from  theology — to  detect  and  explain  these  fun- 
damental principles  that  are  written  in  nature,  and 
by  reason  to  determine  in  accordance  with  them  the 
arrangements  that  are  essential  to  physical  existence. 
But  a  caution  is  here  necessary,  and  Melanchthon 
explains  that  "not  all  the  dreams  of  philosophers 
are  to  be  regarded  as  oracles,"  but  only  those  opin- 
ions are  to  be  accepted  which  conform  with  the 
utmost  precision  to  the  requirements  of  logical  deduc- 
tion.2 Such  as  do  fulfil  these  conditions  are  truly 
natural  law;  and  natural  right,  therefore,  includes 
all  human  relations  that  can  be  derived  either  from 
the  commands  of  God  in  the  Decalogue,  or  from  right 
reasoning  about  the  nature  of  man. 

The  principles  of  natural  law  furnish  a  basis  for 
private  property  and  for  liberty.  The  right  of  prop- 
erty is  distinctly  expressed  in  the  command  of  the 
Decalogue,  "Thou  shalt  not  steal;"  but  Melanch- 
thon is  obliged  by  circumstances  to  qualify  here,  and 
in  order  to  sustain  the  Protestant  princes  in  con- 


1  Omnes  igitur  sententise  de  civili  societate  quae  bona  et  firma  con- 
sequentia  colliguntur  ex  natura,  pro  diviriis  legibus  erunt  habendee 
atque  colendse.  —  Commentarii  in  Librum  I  Politicorum  Aristotclis. 

2  Ibid.,  in  Opera,  XVI,  424. 

VOL.  II.  —  C 


18  POLITICAL  THEORIES 

fiseating  the  wealth  of  the  monasteries  and  pious 
foundations,  he  sets  up  the  rather  far-reaching  doc- 
trine that  those  who  make  bad  use  of  their  property 
may  be  deprived  of  it  by  the  political  authorities. 
As  to  liberty,  the  term  is  defined  as  "  that  condition 
in  which  each  is  permitted  to  have  his  own,  and  citi- 
zens are  not  compelled  to  act  contrary  to  what  is  law- 
ful and  proper."  *  Liberty  in  this  sense  is  not  to  be 
understood,  however,  as  incompatible  with  slavery, 
which  also  is  in  harmony  with  the  law  of  nature. 
Melanchthon  was  no  less  severe  than  Luther  toward 
the  rebellious  peasants  who  sought  by  force  to  escape 
from  the  condition  of  serfage  in  which  they  were^ 
placed  by  existing  laws. 

Secular  government  is,  according  to  Melanchthon, 
an  institution  of  the  law  of  nature.  The  Scriptural 
basis  for  it  is  found  in  the  various  texts  enjoining 
obedience  to  rulers ;  but  in  addition  to  those  that  had 
played  so  great  a  part  in  mediaeval  discussion,2  he 
lays  especial  stress  on  the  commandment,  "  Thou 
shalt  not  kill,"  supplemented  by  God's  declaration  to 
Noah,  "  Whoso  sheddeth  man's  blood,  by  man  shall 
his  blood  be  shed."  3 

The  characteristic  function  of  civil  government  is 
the  punishment  of  offenders  by  corporal  penalties,  in 
order  to  maintain  external  tranquillity  in  the  state 
and  promote  morality,  true  religion  and  proper  dis- 

1  "  Libertas  tails  status  est  in  quo  suum  cuique  tenere  licet,  et  nihil 
contra  leges  et  honestatem  facere  cives  coguntur." 

2  Rom.  xiii,  1-7 ;  1  Peter  ii,  15-17 ;  Matt,  xxii,  17.     Cf.  Political 
Theories  Ancient  and  Mediaeval,  chap,  vi,  sec.  1,  and  chap,  vii,  sec.  4. 

8  Gen.  ix,  6. 


MELANCHTHON  ON   HERESY  19 

cipline  among  the  people.1  Though  the  secular 
ruler  is  limited  by  natural  right,  by  God's  commands 
and  by  the  laws  of  the  realm,  yet  the  wide  scope 
assigned  to  the  political  power  affords  abundant 
ground  for  Melanchthon's  contention  that  the  extir- 
pation of  false  worship  and  of  heresy  is  a  prime 
feature  of  the  magistrate's  duty.  For  the  first  object 
of  all  government  is  the  knowledge  and  glory  of  God, 
and  hence  the  first  function  of  the  magistrate  is  to 
promote  the  true  and  destroy  the  false  forms  of  wor- 
ship and  doctrine.2  But  since  Melanchthon  consist- 
ently maintains  that  the  sphere  of  the  secular  power 
is  limited  to  external  relations  and  excludes  that 
which  is  only  spiritual,  he  puts  his  argument  for  the 
power  of  the  state  over  heresy  on  the  ground  of  power 
over  blasphemy.  Not  the  inward  belief,  but  the  out- 
ward expression  of  it,  is  the  basis  of  the  magistrate's 
action.  Moreover,  in  doubtful  cases  the  determina- 
tion as  to  what  is  heretical  and  blasphemous  must  be 
made,  not  by  the  magistrate,  but  by  a  board  composed 
of  specially  qualified  persons,  both  lay  and  clerical.8 
An  ecclesiastical  council,  thus,  is  Melanchthon's  ulti- 
mate organ  for  deciding  matters  of  faith  and  disci- 
pline —  and  a  council  which  he  expressly  declares  must 
be  neither  monarchic  nor  democratic,  but  aristocratic 
in  composition  and  character.  But  though  the 

1  Philosophies  Moralis  Epitome,  in  Opera,  XVI,  117. 

2  Opera,  XVI,  119  et  seq. 

8  This  was  the  character  of  the  consistories,  which  in  the  Lutheran 
churches  took  over  much  of  the  jurisdiction  which  had  belonged  to 
the  bishop's  court  in  the  old  system.  Cf.  Gieseler,  Vol.  IV,  Div.  I, 
part  ii,  chap.  ii. 


20  POLITICAL  THEORIES 

authority  of  the  secular  ruler  is  nominally  subject  to 
the  judgment  of  such  an  ecclesiastical  organ,  there  are 
some  offences  so  obviously  scandalous  as  to  require 
direct  and  unhesitating  action  by  the  magistrate,  and 
in  this  category  Melanchthon  includes  Amasses  for  the 
souls  of  the  dead,  the  worship  of  saints,  vows  of  celib- 
acy, and  other  characteristic  rites  of_the  Catholics?1 

This  position  of  Melanchthon  in  reference  to  heresy 
is  sustained  by  a  principle  upon  which  he  lays  great 
stress,  namely,  that  while  the  function  of  the  civil 
authorities  is  limited  to  the  care  of  external  relations 
and  interests^  it  is  by  no  means  limited  to  relations 
and  interests  that  are  merely  material.  To  use  his 
own  reiterated  expression,"  the  duty  of  the  ruler  is  to 
care  not  only  for  the  good  of  the  belly  but  also  for 
the  good  of  the  soult2  Nor  does  this  confuse  the 
functions  of  magistrate  with  those  of  minister  of 
the  Evangel.  The  latter  has  for  his  task  to  teach  the 
Word  of  God  and  to  mould  men's  spirits  into  con- 
formity therewith ;  while  the  former  is  to  maintain 
those  outward  forms  and  actions  which  manifest  re- 
spect for  God.  For  the  same  end,  thus,  the  glory  of 
God,  church  and  state  cooperate  by  two  distinct 
means. 

This  doctrine  as  to  the  scope  of   secular  power  is 

1  The  enormity  of  these  offences  is  apparent,  he  says,  to  all,  "  qui 
non  sunt  aut  prorsus  Epicurei  aut  prorsus  stolidi."    "  Epicurean  "  was 
the  term  by  which  both  Luther  and  Melanchthon  commonly  desig- 
nated the  extreme  rationalists  of  the  day.     Opera,  XVI,  98. 

2  Sentiendum   est  politias  divinitus    .    .    .    constitutas   esse  non 
tantum  ad  quserenda  et  fruenda  ventris  bona  sed  multo  magis  ut 
Deus  in   societate  innotescat  et  seterna  bona  quserantur.  —  Opera, 
XVI,  91-92. 


FORMS   OF   GOVERNMENT  21 

not  much  different  from  the  mediaeval  dogma  that  it 
was  the  duty  of  government  to  promote  the  true 
faith  in  accordance  with  the  bidding  of  the  church. 
Practically,  however,  in  the  Lutheran  countries  the 
relation  of  the  two  powers  became  the  precise  converse 
of  that  of  the  Middle  Age,  and  the  church  subsided 
into  insignificance  beside  the  secular  authorities. 

As  to  the  form  which  the  political  organization 
should  take,  Melanchthon  has  little  to  say.  God 
approves  any  form  that  does  not  contravene  the  law 
of  nature.  Incidentally  to  the  study  of  Aristotle's 
classification  of  monarchies,  Melanchthon  considers  the 
theory  of  universal  empire  and  summarily  rejects 
the  idea  that  either  pope  or  emperor  ever  ruled  over 
the  whole  world.  From  both  Scripture  and  profane 
history  he  draws  the  conclusion  that  the  normal  order 
of  things  is  the  existence  of  many  kingdoms  subject 
to  independent  rulers.  Because  kings  have  always 
tended  to  become  tyrants,  various  devices  have  come 
into  existence  for  limiting  royal  power.  Laws  have 
been  set  up  to  hedge  the  monarchs  about,  and  ephors, 
electoral  princes  and  parliaments  have  been  made 
coordinate  with  them;  but  none  of  these  methods 
has  been  effective.  Most  efficient  have  been,  he 
thinks,  the  restraints  of  religion,  and  it  is  for  this 
reason  that  the  ecclesiastical  authority  of  the  bishops 
has  been  built  up.  But  this  authority,  he  reflects,  is 
the  clay  that  was  mixed  with  the  iron  in  the  vision 
of  Belshazzar.1 

As  to  the  subjects  of  divinely  established  monarchs, 

i  Opera,  XVI,  440. 


22  POLITICAL  THEORIES 

Melanchthon's  teaching,  like  Luther's,  is  that  of  pas- 
sive obedience  in  the  fullest  sense.  Not  even  impious 
rulers  are  to  be  resisted.  Wycliffe's  doctrine,  that 
only  those  who  have  the  Holy  Spirit  in  their  hearts 
can  possess  lordship,  is  subjected  to  elaborate  refuta- 
tion. Yet  Melanchthon,  like  Luther,  weakens  a  little 
before  the  idea  of  the  tyrant.  Inspired  by  the  pagan 
classics,  he  recognizes  the  right  of  tyrannicide  as 
against  a  private  individual  seeking  to  seize  political 
power  by  force,  or  a  magistrate  who  is  atrociously 
and  notoriously  oppressing  his  subjects.  But  if  the 
oppression  and  wrong,  in  the  latter  case,  be  not 
notorious  and  indisputable,  it  is  the  duty  of  the 
citizens  to  submit.1 

While  Melanchthon  maintained  in  public,  through- 
out his  life,  his  teachings  as  to  the  divine  right  of 
princes  and  the  duty  of  passive  submission  on  the 
part  of  subjects,  his  private  correspondence  shows 
that  he  was  painfully  conscious  of  the  selfish  and 
oppressive  use  which  even  the  Protestant  princes  were 
making  of  the  powers  which  were  recognized  as 
belonging  to  them.  He  realized  that  a  powerful 
restraint  had  been  removed  from  the  arbitrary  will  of 
the  monarch  by  the  destruction  of  the  ancient  system 
of  ecclesiastical  authority,  and  he  even  suggested  the 
wisdom  of  restoring  the  jurisdiction  of  the  bishops,2 
although  their  powers  had  constituted  one  of  the 

1  Opera,  XVI,  105.    Melanchthon  thinks  that  Caesar  was  not  justly 
slain. 

2  Utinam,  utinam  possim  non  quidem  dominationem  confirmare 
sed  administrationem  restituere   Episcoporum.  —  Letter  quoted  in 
Gieseler,  Vol.  IV,  p.  529,  note. 


MELANCHTHON  ON  MONARCHY  23 

chief  grievances  that  had  led  to  the  Reformation. 
It  is  evident  also  that  Melanchthon  considerably 
modified  his  views  as  to  the  excellence  of  monarchic 
government,  and  turned  with  more  confidence  to  the 
aristocratic  organization  of  the  free  imperial  cities, 
which  were  most  prosperous  in  his  day.  In  them  he 
seemed  to  see  hope  of  the  redemption  of  Germany 
from  the  rapacity  and  oppression  of  the  princes.1 

4.    Zicingli 

The  importance  of  Ulrich  Zwingli,  the  Swiss 
Reformer,  from  the  standpoint  of  political  theory,  is 
not  great,  and  such  as  it  is,  it  appears  rather  in  the 
method  through  which  the  new  faith  and  practice 
were  actually  introduced  than  in  the  doctrines  on 
which  they  rested.  Theologically  the  differences 
between  the  Zwinglian  (or  Reformed)  and  the  Lu- 
theran (or  Evangelical)  creed  were  sufficient  to  prevent 
a  united  front  against  the  Roman  system  ;  but  the 
dogmas  which  interposed  an  insuperable  barrier  to 
union  were  not  those  which  had  any  bearing  on 
politics.  Still  it  is  hardly  doubtful  that  some 
influence  was  unconsciously  exerted  by  the  marked 
differences  in  political  institutions  between  the  mo- 
narchic states  of  North  Germany,  where  the  Lutheran 
doctrine  prevailed,  and  the  aristocratic  Swiss  cantons 
and  imperial  cities  of  South  Germany,  which  were 
the  bulwarks  of  the  Reformed  creed. 

Zwingli' s  personal  work  in  transforming  creed  and 
worship  in  Zurich  was  almost  as  much  political  as 

1  Hagen,  Melanchthon  ah  Politiker,  passim. 


24  POLITICAL  THEORIES 

theological.  His  learning,  eloquence  and  energy  won 
for  him  a  predominant  influence  upon  the  policy  of 
the  canton;  and  accordingly  the  abolition  of  the 
Roman  and  the  introduction  of  the  Reformed  faith 
and  practice  were  effected  through  the  agency  of  the 
established  governmental  organs.  Zwingli  was  not 
himself  a  member  of  the  assembly  in  which  the 
supreme  power  was  vested,  but  his  opinions,  as/'  set 
forth  in  sermons  and  in  pamphlets,  were  almost 
invariably  adopted  and  enacted  into  law.1  This  fact 
determined  the  Reformer's  view  as  to  the  norrnal  rela- 
tion of  spiritual  to  secular  organization.  At  the  out- 
set he  does  not  seem  to  have  contemplated  the 
assumption  of  ecclesiastical  functions  by  the  state  ;  his 
theory  as  to  the  distinction  in  kind  betweejijjspintual 
and  secular  institutions  and  authority  was  not  gssen- 
tiallyjiifferent  from  that  of  Luther.2  But  when  the 
government  of  Zurich  gradually  took  to  itself  the 
regulation  of  worship  and  incorporated  ZWingli's 
teachings  in  the  law  of  the  land,  he  acquiesced  in 
and  defended  the  accomplished  fact.3  The__church 
hjregarded  as  only  the  invisible  communion  j)f__the 
saints,  while  whatever  regulation  was  necessary  for  the 
ordering  of  worship  and  discipline  was  a  function  of 
the  secular  organs  of  each  community,  go  far  as  an 
external  agency  was  required  in  relation  to  spiritual 
life,  the  civil  government  filled  the  want.  The 

1  Jackson,  Zwingli,  chap,  x,  passim ;  cf.  also  the  Introduction,  by 
Professor  J.  M.  Vincent,  pp.  38  et  seq. 

2  See  the  treatise,  Von  der  gottlichen  und  menschlichen  Gerechtigkeit, 
in   modern    German   in    Christoffel,  Zwingli,  Ausgewdhlte  Schriften, 
p.  313.  8  Stjihelin,  Huldreich  Zwingli,  I,  455  et  seq. 


CHURCH  AND  STATE  IN  ZURICH  25 

Zwinglian  system,  thus,  blended  state  and  church  in 
a  single  organization.  The  community  (gemeinde) 
determined  for  itself,  through  its  constituted  author- 
ities, the  form  and  manner  of  its  spiritual  life  as  well 
as  the  rules  which  should  control  its  mere  physical 
existence. 

This  method  of  adjusting  the  relations  of  the  two 
species  of  authority  was  not  ill  adapted  to  the  Swiss 
community,  where  a  fair  degree  of  equality—in  social 
and'~economic  conditions  prevailed  and  religious  belief 
tended  naturally  to  uniformity.  But  it  involved  no 
different  attitude  from  that  of  the  Lutherans  in  refer- 
ence to  the  relation  of  subjects  to.  magistrates  or  in 
reference  to  the  treatment  of  heresy.  Zwingli  taught 
the  duty  of  passive  obedience  on  the  part  of  subjects., 
and  the  toleration  of  difference  in  belief  only  so  far, 
as  the  teachings  of  the  Scriptures  were  not  contra- 
vened.  But  Zurich  itself,  under  his  leadership, 
refused  to  find  in  the  Scriptures  what  was  found 
there  by  the  Anabaptists,  and  persecuted  these 
sectaries  with  fire  and  sword ;  and  Zwingli  lost  his 
life  in  an  attempt  to  prevent  the  Catholic  cantons 
from  enforcing  their  views  of  the  Scriptures  upon 
adherents  of  the  Reformed  faith:1 

The  Swiss  Reformer  did  not  live  to  rise  above  the 
Swiss  point  of  view.  It  will  always  be  his  greatest- 
title  to  fame  that  he_foujaded~the.  creed  and  inaugu- 
rated the  movement  which  won  the  support  of  a  mind 
of  greater  breadth  and  vastly  greater  power  than 
his  —  the  mind  of  the  Frenchman,  John  Calvin. 

1  Jackson,  Zwingli,  p.  302. 


26  POLITICAL  THEORIES 

5.    John  Calvin 

The  distinctive  work  of  Calvin  was  that  of  giving 
to  the  Reformed  faith  a  system  of  doctrine  so  com- 
prehensive, so  logical,  and  so  closely  articulated  and 
coherent  as  to  meet  on  equal  terms  the  system  which 
had  been  developed  into  symmetry  and  unity  by  cen- 
turies of  thought  and  tradition  in  the  Roman  church. 
While  Luther  was  the  theologian,  Melanchthon  the 
philosopher  and  Zwingli  the  politician,  Calvin  was 
distinctly  the  lawgiver  of  the  Reformation.  He  was 
trained  to  the  law  and  he  was  a  Frenchman  ;  by 
these  two  facts  may  be  explained  in  large  measure 
the  admirable  qualities  of  method  and  form  which 
secured  so  wide  an  influence  to  his  writings.  His 
Institutes  of  the  Christian  Religion  was  designed 
as  a  complete  guide  to  the  soul  that  sought  to  live 
according  to  God's  Word ;  and  it  furnished,  indeed,  a 
much  safer  resort,  in  many  respects,  than  the  Bible 
itself.  For  Calvin,  like  the  other  great  leaders  of 
the  Reform,  greatly  dreaded  the  fanatics  who  derived 
from  the  Scriptures  revolutionary  social  doctrines, 
and  he  shaped  an  interpretation  that  was  based  on 
the  jurist's  postulates  of  order  and  authority.1  In 
his  teaching,  moreover,  there  was  nothing  of  the 
confusion  and  inconsistency  that  appeared  among 
the  different  books  of  the  Bible  and  among  the  differ- 
ent works  of  the  old  theologians.  The  Institutes 
presented  a  marvellously  clear,  straightforward  and 

1  For  the  circumstances  under  which  the  work  was  produced,  see 
Stahelin,  Calvin,  I,  57  et  seq. 


CHURCH  AND  STATE  DISTINCT  27 

harmonious  exposition  of  a  system  c6mplete  and 
intelligible  in  all  its  parts,  from  the  initial  concep- 
tion of  the  Christian  God  to  the  last  injunction  of 
obedience  to  the  earthly  magistrate. 

Calvin's  doctrine  on  the  subjects  of  political  im- 
port is  contained  in  Book  IV  of  the  Institutes.1  It 
embodies,  first,  a  clean-cut  rejection  of  the  Zwinglian 
idej^  thj^^ 

organization.  The  spiritual  mission  of  the  church 
requires,  according  to  Calvin,  a  system  of  govern- 
ment and  discipline  adapted  to  its  peculiar  character. 
This  system  must  be  wholly  distinct  from  that 
required  by  secular  ends ;  and  he  argues  temperately, 
but  powerfully,  on  the  familiar  lines  of  the  German 
Reformers,  for  an  ecclesiastical  jurisdiction  that  sHall 
exclude  every  element  of  merely  secular  concern, 
shall  end  with  the  penalty  of  excommunication,  and 
shall  be  vested  in  an  assembly  of  the  elders,  as  in  the 
primitive  days  of  Christianity.2 

Secular  government,  however,  is  no  less  necessary 
than  ecclesiastical.  Calvin  has  no  patience  with 
those  fanatics  "  who  would  have  men  live  pell-mell 
like  rats  in  the  straw," 3  or,  on  the  other  hand,  with 
the  parasites  of  royalty  who  say  that  the  king's 
authority  is  above  that  of  God.  Civil  government,  he 
holds,  is  as  indispensable  to  men  as  food  and  clothing, 
and  the  authority  of  a  magistrate  is  the  most  sacred 
and  honourable  of  all  things  pertaining  to  mere  mortal 

1  This  constitutes  Vol.  Ill  of  the  translation  by  Beveridge,  pub- 
lished by  the  Calvin  Translation  Society,  1846. 

2  Institutes,  Bk.  IV,  chap.  xi.  8  Ibid.,  chap,  xx,  par.  5. 


28  POLITICAL  THEORIES 

life.  The  objects  of  civil  government  include  the 
assurance  of  physical  existence  to  men,  the  preserva- 
tion of  order,  property  and  liberty,  and  especially  the 
exclusion  of  idolatry,  blasphemy  and  calumnies 
against  truth  from  among  the  people ;  or,  as  he  sums 
up  the  matter,  "  that  a  public  form  of  worship  may 
exist  among  Christians  and  humanity  among  men."1 
As  to  the  particular  forms  of  organization,  Calvin 
thinks  that  there  is  little  to  choose  as  between  mon- 
archy, aristocracy  and  democracy,  though  the  aristo- 
cratic type  seems  to  have  the  most  in  its  favour.2  All 
political  institutions  vary  properly  according  to  times 
and  circumstances,  and  all  are  good  that  conform  to 
the  requirements  of  equity. 

The  duty  of  the  secular  rulers  begins  with  the  care 
of  piety  and  religion.  There  is  no  room  in  Calvin's 
system  for  the  theory  that  the  magistrates  should 
confine  themselves  to  the  administration  of  mere 
human  justice ;  "  as  if  God,"  he  says, "  had  appointed 
rulers  in  his  own  name  to  decide  earthly  contro- 
versies and  omitted  what  was  of  far  greater  moment, 
his  own  pure  worship  as  prescribed  by  his  law." 3 
It  is  only  turbulent  agitators,  seeking  to  turn 
the  world  upside  down,  that  would  deny  to  civil 

1  Institutes,  Bk.  IV,  chap,  xx,  par.  3. 

2  "  I,  for  my  part,  am  far  from  denying  that  the  form  which  greatly 
surpasses  the  others  is  aristocracy,  either  pure  or  modified  by  popular 
government.  .  .  .     This  has  already  been  proved  by  experience  and 
confirmed  also  by  the  authority  of  the  Lord  himself,  when  he  estab- 
lished an  aristocracy  bordering  on  popular  government  among  the 
Israelites,    keeping    them   under    that   as   the   best    form   until  he 
exhibited   an  image  of  the  Messiah  in  David."  —  Ibid.,  par.  8;   cf. 
pars.  14-16.  8  Ibid.,  par.  9. 


CALVIN  ON  PASSIVE   OBEDIENCE  29 

authority  the  power  to  avenge  violated  piety.  After 
this  primary  function,  the  magistrates  are  bound  to 
provide  for  the  peace  and  safety  of  the  state.  To 
this  end  Calvin  vindicates  for  the  civil  authorities  the 
right  to  inflict  capital  punishment,  to  carry  on  war, 
and  to  raise  money  by  taxation} —  all  subject  to  the 
prescriptions  of  justice  and  right  reason.  Christians 
are  bound  to  sustain  the  established  government  in 
these  ends.  There  is  no  sense,  Calvin  argues,  in  the 
claim  that  the  Mosaic  law  alone  is  entitled  to  the 
respect  of  the  pious,  or  that  God's  people  cannot  prop- 
erly have  recourse  to  the  courts  to  maintain  their 
rights.  The  Mosaic  law,  in  its  ceremonial  and  polit- 
ical aspects,  was  adapted  to  Jewish  conditions  only, 
and  is  in  no  way  requisite  to  modern  Christian  life  ; 
and  the  employment  of  existing  agencies  to  maintain 
the  right  and  punish  the  wrong  is  not  only  permis- 
sible, but  even  meritorious,  in  the  righteous. 

Finally,  Calvin  rounds  out  his  teaching  with  an 
elaborate  exposition  of  the  duty  of  passive  obedience 
to  established  authority.  Here,  as  throughout  his 
work,  he  does  not  flinch  from  the  extremest  deduc- 
tions that  flow  logically  from  his  premises.  Thus, 
he  declares : 

Even  an  individual  of  the  worst  character,  one  most  un- 
worthy of  all  honour,  if  invested  with  public  authority,  receives 
that  illustrious  divine  power  which  the  Lord  has  by  his  ^Vord 
devolved  on  the  ministers  of  his  justice  and  judgment,  and 
accordingly  ...  in  so  far  as  public  obedience  is  concerned,  he  is 
to  be  held  in  the  same  honour  and  reverence  as  the  best  of 
kings.1 

1  Institutes,  Bk.  IV,  chap,  xx,  par.  25. 


30  POLITICAL  THEORIES 

And  again : 

We  will  never  entertain  the  seditious  thought  that  a  king 
is  to  be  treated  according  to  his  deserts,  and  that  we  are  not 
bound  to  act  the  part  of  good  subjects  to  him  who  does  not  in 
turn  act  the  part  of  a  king  to  us. 

The  business  of  the  subject  is  to  do  his  duty  and  to 
leave  to  God  the  punishment  of  kings  who  fail  to  do 
their  duty.  This  attitude  is  not  required,  however, 
of  public  officials  whose  explicit  function  it  is  to  curb 
the  power  of  monarchs.  Ephors,  tribunes  and  such 
magistrates  are  guilty  of  perfidy  if  they  fail  to  re- 
strain tyrannical  tendencies  in  their  kings,  and  Calvin 
adds,  with  the  conditions  of  France  and  England 
doubtless  in  his  mind :  "  Perhaps  there  is  something 
similar  to  this  in  the  power  exercised  in  each  king- 
dom by  the  three  orders,  when  they  hold  their  pri- 
mary diets." l  In  this  reference  to  the  limited 
monarchy  Calvin  suggests,  as  Luther  had  done,2  that 
questions  of  resistance  to  princes  may  properly  belong 
in  the  field  of  public  law.  Add  to  this  the  explicit 
declaration  of  Calvin  that  the  limit  of  obedience  to 
kings  is  the  command  of  God,3  and  the  groundwork 
is  laid  for  the  practice  of  the  half-political,  half- 
religious,  but  undoubtedly  vigorous,  resistance  which 
his  followers  in  France,  the  Netherlands  and  else- 
where substituted  for  that  of  passive  obedience? 
Such  were  the  leading  features  of  Calvin's  political 

1  Institutes,  Bk.  IV,  chap,  xx,  par.  31. 

2  Supra,  p.  14. 

8  "  If  they  [the  rulers]  command  anything  against  Him  [God] ,  let 
us  not  pay  the  least  regard  to  it,  nor  be  moved  by  all  the  dignity 
which  they  possess  as  magistrates."  —  Institutes,  IV,  xx,  32. 


CALVIN'S  SYSTEM  AT  GENEVA  31 

theory.  The  influence  of  his  system  cannot  be  prop- 
erly understood,  however,  without  some  consideration 
of  the  application  made  of  it  by  its  author  in  his 
celebrated  regime  at  Geneva.  In  this  city-state, 
which  had  just  freed  itself  definitively  from  the  danger 
of  absorption  by  Savoy  and  also  from  the  Catholic 
church,  Calvin  settled  after  he  was  obliged  to  leave 
France.  His  theological  power,  moral  earnestness 
and  political  insight  were  peculiarly  adapted  to  bring 
order  out  of  the  chaotic  social  conditions  that  had 
been  left  by  the  recent  upheaval,  and  he  quickly  won 
recognition  as  the  regeneratj^  of  the  republic. 
Though  at  first  the  system  ^rch  he  introduced 
aroused  serious  opposition,  so  that  he  was  banished, 
nevertheless  he  proved  indispensable  and  was  ulti- 
mately recalled  without  objection.  Then,  in  1542, 
he  carried  through  the  ecclesiastical  and  political  re- 
organization which  made  Geneva  celebrated  through- 
out the  world,  and  afforded  a  model  for  government 
wherever  Calvinism  gained  the  ascendency. 

The  system  was  theocratic  in  principle  and  aristo- 
cratic in  operation.  The  citizens  of  Geneva,  as  a  com- 
munity^ constituted  at  once  a  church  and  a  state.  As 
church  they  were  organized  in  (1)  the  board  known 
as  the  Venerable  Company,  consisting  of  the  minis- 
ters and  professors  of  theology,  and  (2)  the  Consistory, 
made  up  of  the  ministers,  together  with  twelve  elders 
chosen  by  the  chief  administrative  council  of  the  city 
out  of  its  own  members.  These  two  boards  managed 
respectively  the  worship  and  the  moral  discipline 
of  the  community ;  and  their  aristocratic  character 


32  POLITICAL  THEORIES 

appears  in  the  fact  that  the  ministers,  whose  influence 
in  both  boards  was  supreme,  were  chosen  by  the  Ven- 
erable Company  itself,  with  mere  confirmation  by  the 
body  of  the  people.  The  church  government  was 
thus  a  self -perpetuating  oligarchy.  As^sta  teethe 
population  was  organized  in  a  series  of  councils,  so 
correlated  that  the  chief  power  lay  in  a  board  of 
twenty-four,  on  whose  membership  the  mass  of  the 
people  had  but  very  slight  influence. 

More  significant  than  the  forms  of  organization 
was  the  code  of  morals  and  law  which  these  organs 
administered.  Calvin's  disciplinary  rules  for  Chris- 
tian living,  enforeecKy  the  Consistory,  embodied  the 
most  rigorous  system  of  Puritanism.  The  frequency 
and  form  of  church  services  were  minutely  prescribed 
and  attendance  was  compulsory;  the  substantial  as 
well  as  the  incidental  features  of  marriage  were 
closely  regulated ;  jewellery  and  long  hair  were  pro- 
hibited, gay  colours  and  new  fashions  in  clothes  were 
banned,1  and  the  luxury  of  banquets  and  like  enter- 
tainments was  put  under  careful  restrictions.  All 
deviations  from  the  ascetic  ideal  entailed  fines  and 
public  humiliations,  and  the  members  of  the  Consis- 
tory were  required  to  maintain  a  relentless  visitation 
and  search  of  homes  to  find  out  and  punish  infractions 
of  the  code.  But  besides  this  ecclesiastical  jurisdic- 
tion the  secular  magistracy  enforced  a  criminal  code 
of  Draconian  severity,  in  which  blasphemy  was 
punishable  by  burning  at  the  stake,  and  frivolity  in 

1  Red  was  especially  forbidden,  and  a  tailor  could  introduce  a  new 
style  only  with  consent  of  the  authorities. 


CONFLICT  OF  THE  TWO  POWERS  33 

speech  or  action,  cruelty  to  animals,  and  reading 
improper  books  entailed  penalties  that  were  not  light. 
Moreover,  obstinate  and  incorrigible  offenders  whom 
the  Consistory  could  not  adequately  deal  with  were 
in  last  instance  punished  by  the  ,civil  arm.  Under 
this  power  Servetus,  the  former  friend  of  Calvin,  was 
with  the  latter' s  full  approval  put  to  death  for  heresy 
and  blasphemy. 

The  Genevan  constitution  was  not  entirely  true  to 
Calvin's  theory.  The  Consistory,  for  example,  though 
an  ecclesiastical  organ,  was.  partially  dependent  on  a 
secular  organ  for  its  membership,  and  thus  the  prin- 
ciple of  absolute  separation  of  the  two  governments 
was  violated.  In  operation,  too,  the  harmony  which 
would  spring  from  a  clear  delimitation  of  jurisdictions 
was  never  realized.  Only  by  the  personal  power 
and  influence  of  Calvin  himself  was  the  system  pre- 
served from  destruction,  and  this  end  was  achieved 
through  the  gf adual  but  sure  relegation  of  the  secu- 
lar organization  to  the  position  of  a  subordinate  and 
inferior  element.  The  conflict  of  "  the  two  powers  " 
repeated  in  the  Swiss  city-state  the  mediaeval  experi- 
ence of  the  Holy  Roman  Empire,  and  Calvin  domi- 
nated Geneva  in  a  sense  not  widely  different  from  that 
in  which  Innocent  III  had  dominated  Europe. 

6.   Summary 

The  foregoing  sketch  of  the  teachings  of  the  great 
Reformers  reveals  how  completely  the  trend  of  their 
influence  on  political  theory  was  opposed  to  that  of 
Machiavelli.  In  their  method  and  point  of  view  the 


VOL.   II. — D 


34  POLITICAL  THEORIES 

rationalizing,  unmoral  and  unreligious  spirit  of  the 
great  Italian  had  no  place,  and  his  exclusive  appeal 
to  pagan  history  was  repudiated.  However  pro- 
foundly they  were  affected  by  the  currents  of  the 
Renaissance,  their  ethical  and  political  theories  were 
in  the  strictest  sense  mediaeval  and  scholastic.  The 

• 

postulates,  the  categories  and  the  scope  of  their 
systems  were  identical  with  those  recognized  by 
Aquinas,  and  in  the  case  of  Melanchthon,  especially, 
the  formal  syllogistic  method  of  the  Schoolmen  was 
frequently  employed.  To  the  Reformers  the  relation 
of  church  to  state  and  the  moral  basis  of  the  latter 
constituted  practically  the  whole  of  political  theory ; 
and  in  the  treatment  of  these  problems  they  merely 
developed  the  doctrines  which  had  been  set  forth  by 
Marsiglio,  Ockam,  Gerson  and  Cusanus. 

But  this  development  involved,  of  course,  a  recog- 
nition of  the  progress  in  external  conditions  that 
distinguished  the  sixteenth  from  preceding  cen- 
turies. Despite  the  temporary  revival  of  the  impe- 
rial tradition  under  Charles  V,  the  outcome  of  his 
reign  emphasized  that  disintegration  of  the  Empire 
which  corresponded  with  the  atomizing  theories  of 
the  Reform.  For  the  rejection  of  papal  suprem- 
acy and  the  assumption  of  ecclesiastical  jurisdiction 
and  control  by  various  communities,  great  and  small, 
signified  the  completion  of  the  same  process  in  the 
church  that  had  been  practically  and  theoretically 
completed  some  time  before  in  the  Empire.  Hence 
the  Reformation,  with  all  its  dependence  on  mediae- 
val methods  of  thought  in  politics,  was  entirely  free 


THE  EEACTION  AGAINST  TYRANNY  35 

from  those  potent  concepts  —  universal  empire  and 
universal  church.1  It  allied  itself,  more  perhaps 
on  practical  than  on  theoretical  grounds,  with  the 
national  idea  which  had  already  received  extensive 
recognition  in  the  leading  monarchies  of  Europe. 

The  doctrine  of  the  divine  character  of  secular  gov- 
ernment, which  was  propounded  by  all  the  great 
Reformers,  was  substantially  identical  with  that 
which  had  been  held  in  the  early  Christian  church, 
in  the  dogma  of  the  two  powers,  but  had  been 
much  obscured  in  the  later  Middle  Age  through  the 
exaggeration  of  ecclesiastical  power  and  prestige.  By 
the  teaching  of  the  Reformers  the  dignity  of  rulers 
and  magistrates  was  put  on  the  most  explicit  asser- 
tion of  God's  sanction.  This  gave  a  decided  impetus 
to  the  projects  of  ambitious  princes,  despite  the  oc- 
casional denunciation  of  their  personal  characters 
and  methods.2  The  most  conspicuous  result  of  the 
Reformers'  teaching,  however,  was  the  exalted  con- 
ception of  the  excellence  bestowed  by  God  upon  the 
elect  —  upon  those  whom  he  had  chosen  from  all 
eternity  to  be  his  saints.  This  conception  promoted 
diametrically  opposite  political  tendencies  in  Lutheran 
and  in  Calvinistic  lands.  In  the  former,  which  were 
mostly  monarchic,  it  confirmed  the  practice  of  passive 
submission,  by  the  emphasis  which  it  laid  on  the 
ineffable  bliss  of  salvation  as  compared  with  any 


1  That  is,  universal  church  in  the  sense  of  a  single  ecclesiastical 
organization.     The  concept  of  the  church  universal  as  the  general 
body  of  the  elect  still  endured. 

2  C/.  Luther,  supra,  p.  13. 


36  POLITICAL  THEORIES 

superiority  in  the  gross  conditions  of  material  life. 
In  the  latter,  where  aristocratic  institutions  commonly 
prevailed,  the  effect  of  the  conception  was  to  justify 
the  utmost  extension  of  political  authority,  on  the 
ground  that  the  divine  inspiration  of  the  elect  gave 
absolute  validity  to  any  species  of  activity  which  they 
might  direct.  Thus  in  monarchic  l^nds_thejuendency 
of  the  Reform  was  to  enhance  the  hold  o_f_Jbhe 
monarchic  principle  and  in  aristocratic  governments 
to  confirm  the  principle_pf  aristocracy.  In  both  the 
effect  was  to  strengthen  absolutism  in  the  political 
sovereign. 

This  effect  was  in  no  wise  diminished  by  the  fact 
that  in  respect  to  the  relation  of  the  secular  arm  to 
heresy  the  doctrine  of  the  Reformers  differed  little,  if 
at  all,  from  that  of  the  Catholics.  As  we  have  seen 
above,  both  Lutherans  and  Calvinists  agreed  that 
the  government  must  exterminate  heretics,  and  Cal- 
vin himself  had  participated  in  the  prosecution  of 
Servetus,  which  had  produced  a  profound  sensa- 
tion throughout  Europe.  The  discussion  that  was 
aroused  by  this  tragic  incident  produced  a  well- 
rounded  theory  of  religious  toleration,1  but  neither 
branch  of  the  Reformers  showed  any  sympathy  with 
it,  and  Theodore  Beza,  the  devoted  satellite  of  Calvin, 
wrote  a  formal  and  elaborate  refutation2  of  the  theory, 
with  a  demonstration  of  the  righteousness  and  necessity 
of  the  capital  punishment  of  heretics  by  the  civil  mag- 

1  By  Sebastian  Castalion.     See  Janet,  Htstoire  de  la  Science  Poli- 
tique,  Vol.  II,  pp.  16  et  seq.,  and  51. 

2  Analyzed  at  length  by  Janet,  loc.  cit. 


THE   REACTION  AGAINST  TYRANNY  (1   37 

— r 
istrates.      When  it  is  borne  in  mind  that  in  practice, 

if  not  in  theory,  the  ultimate  authority  to  decide  in 
what  heresy,  consisted  lay,  in  Protestant  countries, 
with  the  government,  the  "bearing  of  the  Reformers' 
doctrine  is  obvious. 

Through  the  influences  thus  developed. Protestant 
peoples  were  subjected  to  an  increasing  pressure  of 
governmental  authority  and  at  the  same  time  deprived? 
of  the  check  upon  this  which,  with  whatever  qualifi- 
cations and  inconveniences,  had  been  in  fact  exerted 
through  the  papal  jurisdiction.  The  possibility  of 
oppression  —  and  indeed  the  actuality  of  it  —  came 
early  into  the  consciousness  of  the  Reformers,  and  we 
have  seen  the  manifestation,  especially  in  the  Lutheran 
doctrines,  of  a  tendency  so  to  define  a  tyrant  as  to 
qualify  the  duty  of  passive  obedience.  Melanchthon 
had,  by  his  exposition  of  the  law  of  nature,  given  to 
Protestants  the  sarmeTJasis  forejudging  government 
that  had  been  possessed  by  the  ancient  pagans  and 
the  mediaeval  Catholics.  But  it  was  left  for  the  follow- 
ers of  Calvin,  with  their  peculiarly  strong  sense  of  the 
sanctity  of  the  elect,  to  extend  to  monarchic  lands 
that  conception  of  the  rights  and  dignity  of  the 
saints  that  had  been  realized  in  the  aristocratic  polity 
of  Geneva.  In  France,  in  the  Netherlands,  in  Scot- 
land and  in  England  they  worked  out  and  applied  a 
system  in  which  the  chosen  of  God  should  be  secure 
in  their  secular  rights  and  privileges,  passive  sub- 
mission should  have  well-defined  limits,  and  monarch 
and  subject  alike  should  be  controlled  by  a  higher 
law. 


38  POLITICAL  THEORIES 


SELECT  REFERENCES 

BLUNTSCHLI,  Geschichte  der  neueren  Statswissenschaft,  Cap.  3. 
CALVIN,  Opera  Omnia,  in  the  Corpus  Reformatorum,  esp.  Vol.  X 
(Ordonnances  ecdesiastiques) ;  Institutes  of  the  Christian  Reli- 
gion, trans,  by  Beveridge,  esp.  Vol.  III.  CHRISTOFFEL,  R., 
Huldreich  ^wingli.  CREIGHTON,  History  of  the  Papacy, 
Vol.  VI,  chaps,  iii  and  v.  GIESELER,  Church  Plistory, 
Vol.  IV,  pp.  1-217,  518-549.  HAUSSER,  Period  of  the  Refor- 
mation, chaps,  i-xviii.  JACKSON,  Huldreich  Zwingli.  JACOBS, 
Martin  Luther.  JANET,  Histoire  de  la  science  politique,  Vol.  II, 
pp.  1^30.  KOSTLIN,  Martin  Luther,  Bticher  III,  V,  VI. 
LAURENT,  Etudes  sur  Vhistoire  de  I'humanite,  Tome  VIII,  pp. 
419-515.  LEMME,  Die  drei  Reformationsschriften  Luthers  vom 
Jahre  1520,  esp.  pp.  1-110.  LUTHER,  Opera  Omnia  Latina, 
Vols.  32-38;  WerJce  (critical  Weimar  edition);  Table  Talk, 
ed.  by  Hazlitt.  MELANCHTHON,  Opera  Omnia  (ed.  by  Bret- 
schneider  and  Bindseil)  in  the  Corpus  Reformatorum,  esp. 
Vol.  XVI.  RICHARD,  Philip  Melanchthon.  STAHELIN, 
Johannes  Calvin,  Bticher  II,  IV.  WAGE  and  BUCHHEIM, 
Luther's  Primary  Works,  trans.  ZWINGLI,  WerJce,  esp.  Bde. 
I  and  II. 


CHAPTEE  II 

ANTI-MONARCHIC   DOCTRINES   IN   THE    SIXTEENTH 
CENTURY 

1.    The  Religious  Wars 

WHEN  in  1564  Calvin,  the  last  of  the  quartette  of 
great  Reformers  whom  we  have  considered,  passed 
away,  the  conditions  and  influences  were  clearly 
discernible  which  were  to  give  character  to  the 
dramatic  history  of  western  Europe  during  the 
next  half-century  —  the  period  of  widespread  civil 
and  international  warfare  in  which  difference  in 
religious  creed  marked  the  line  of  division  between 
the  combatants.  Philip  II,  well  settled  as  successor 
of  Charles  V  in  Spam  and  the  Netherlands,  was 
manifesting  his  purpose  to  rule  as  absolute  sov- 
ereign throughout  all  his  possessions  and  to  crush 
Protestantism  wherever  it  existed.  In  England, 
France  and  Scotland  three  women,  despite  John 
Knox's  frantic  demonstration  of  the  iniquity  of 
such  a  thing,1  held  the  reins  of  political  power  — 
Elizabeth,  persecuting  Calvinists  as  well  as  Catho- 
lics, yet  already  the  mainstay  of  Protestantism 
against  Philip ;  Catherine  de'  Medici,  Catholic  if 

1  See  his  First  Blast  of  the  Trumpet  against  the  Monstrous  Regiment 
of  Women. 


40  POLITICAL  THEORIES 

anything  by  conviction,  but  wholly  Machiavellian 
in  her  employment  of  religion  to  aid  her  in  wield- 
ing the  authority  which  rested  nominally  in  her 
weak  and  incapable  son,  Charles  IX;  and  finally, 
Mary,  Queen  of  Scots,  a  passionate  French  girl, 
struggling  by  girlish  methods  —  with  "owlings  and 
tears,"  as  John  Knox  described  it  — to  assert  for  her- 
self some  small  measure  of  the  rights  of  a  sovereign 
against  the  violent  nobles  and  the  grim  Presbyte- 
rians who  denied  to  her  either  political  or  religious 
independence. 

In  Spain  and  in  England  there  was  no  civil  war 
during  the  period  we  are  considering.  Philip  and 
Elizabeth  alike  knew  how  to  assert  and  enhance  a 
monarchic  authority  that  should  be  secure  against 
resistance.  Absolutism  in  each  case  rested  upon 
national  feeling :  the  Spaniards  submitted  to  Philip 
through  pride  in  the  greatness  of  his  power,  and  the 
English  supported  Elizabeth  through  fear  of  this  same 
power.  Autocracy  was  an  undisputed  fact  in  both 
countries,  and,  by  virtue  of  this  condition,  amid  all  the 
literary  activity  that  characterized  the  period,  political 
theory,  as  is  usual  in  the  time  of  absolutism,  received 
practically  no  attention  in  England  and  Spain.1  Quite 
different  was  the  case  in  France,  Scotland  and  the 
Netherlands.  In  each  of  these  lands  civil  war  was 
chronic  during  the  last  half  of  the  sixteenth  century, 


1  Mariana,  whose  work  is  considered  below,  wrote  just  at  the  end 
of  the  reign  of  Philip  II ;  and  moreover,  Mariana's  work  was  con- 
spicuously exceptional.  For  jurisprudence,  however,  this  period  was 
most  glorious  in  Spain.  See  infra,  chap.  iv. 


THE   HUGUENOT  WARS  41 

and  in  each  appeared  striking  contributions  to  political 
philosophy. 

The  civil  wars  in  France  were  rather  political  than 
religious  in  their  origin.  Under  Francis  I  and  Henry 
II  the  Protestants,  or  Huguenots,  as  they  had  come 
to  be  called,  had  been  subjected  to  severe  persecution, 
but  had  nevertheless  increased  enormously  in  number. 
Their  attitude  toward  the  royal  authority  had  been 
consistently  submissive,  according  to  the  teaching  of 
Calvin  and  the  other  leaders.  But  as  their  doctrines 
won  converts  among  the  higher  social  classes,  espe- 
cially in  the  flourishing  towns  of  the  southwest,  it 
became  increasingly  difficult  to  enforce  the  penalties 
provided  for  heresy.  After  the  death  of  Henry  II 
and  of  his  short-lived  son,  Francis  II  (1560),  the  ex- 
tinction of  the  House  of  Yalois  began  to  be  anticipated  ; 
and  this  fact  brought  to  a  crisis  the  long-standing 
rivalry  of  the  two  noble  houses,  Guise  and  Bourbon, 
who  sought  to  control  the  throne  and  eventually  the 
succession  to  it.  By  tradition  and  policy  the  Guises 
were  strictly  Catholic,  while  the  Bourbons,  through 
their  connections  with  Protestant  Navarre,  were  af- 
filiated more  or  less  with  the  Huguenots.  Hence  the 
degree  of  tolerance  to  be  extended  to  the  latter  sect 
was  the  nominal  issue  under  cover  of  which  the  two 
factions  of  the  aristocracy  fought  out  their  rivalry  for 
supremacy  in  the  state.  The  net  result  of  the  struggle, 
which  lasted,  with  short  intervals  of  truce,  from  1562 
to  1598,  was  the  ascription  of  well-defined  civil  and 
political  rights  to  the  Huguenots  by  the  Edict  of 
Nantes. 


42  POLITICAL    THEORIES 

Of  all  the  incidents  of  treachery  and  assassination 
in  which  the  conflict  abounded,  that  which  created 
the  most  profound  sensation  and  did  most  to  enlist 
and  divide  the  sympathies  of  the  outside  world  on 
purely  religious  grounds,  was  the  massacre  of  St. 
Bartholomew's  day,  1572.  This  terrible  deed,  in  the 
mind  of  its  originator,  Catherine  de'  Medici,  was  in- 
tended merely  to  relieve  her  of  the  unpleasant  domi- 
nation of  the  Huguenot  chiefs,  Coligny  and  others, 
who  happened  at  the  moment  to  have  an  advantage 
over  the  rival  faction.  To  the  world  at  large,  how- 
ever, the  massacre  appeared  an  attempt  to  exterminate 
the  Protestants;  and  because  of  this  belief  the  con- 
tending factions  in  France  were  thereafter  faithfully 
sustained  by  Philip  and  Elizabeth  respectively  and  were 
regarded  as  protagonists  of  the^two  creeds.  Under 
Henry  III,  who  succeeded  his  brother  Charles  IX 
in  1574,  the  Catholic  party  found  an  organization 
in  the  famous  League,  of  which  the  Duke  of  Guise 
was  the  chief  and  which  received  the  support  of 
Philip  IFs  treasure  and  arms  till  its  power  was 
broken  at  Ivry  by  Henry  of  Navarre.  Against  the 
League  the  struggle  of  Henry  III  for  the  retention  of 
the  royal  prerogatives  was  as  violent  and  unscrupu- 
lous as  had  been  that  of  the  queen-mother  and  Charles 
IX  against  the  Huguenot  chiefs.  The  Duke  of  Guise 
was  assassinated  by  royal  order  in  1588  as  Coligny 
had  been  in  1572,  and  Catholic  Europe  looked  upon 
the  author  of  the  later  deed  as  Protestant  Europe  had 
looked  upon  the  author  of  the  earlier.  Less  than  a 
year  after  the  chief  of  the  League  had  fallen  Henry 


RELIGIOUS  STRIFE  IN  SCOTLAND    '  43 

III  himself  died  by  an  assassin's  hand,  and  the  House 
of  Valois  came  to  an  appropriate  end.  Then  appeared 
in  the  open  the  secret  purpose  of  Philip  II  to  make 
France  subject  to  himself,  under  cover  of  the  re- 
ligious issue,  and  the  national  spirit  of  the  French, 
vigorously  asserting  itself,  brought  about  the  succes- 
sion of  the  Bourbon  line  in  the  person  of  Henry  IV. 
Meanwhile  Scotland  had  been  the  scene  of  a  series 
of  convulsions  in  which  political  and  religious  influ- 
ences had  been  no  less  thoroughly  commingled  than 
in  France.  From  1561  to  1567  Queen  Mary  had 
been  the  head  of  the  Catholic  faction  of  the  nobles, 
though  her  efforts  to  assert  for  herself  some  of  the 
prerogatives  of  actual  royalty  met  with  no  success, 
since  the  Scottish  lords  never  allowed  any  considera- 
tion to  outweigh  the  maintenance  of  their  ancient 
independence  as  against  the  crown.  When  Mary's 
extraordinary  matrimonial  exploits  had  resulted  in 
her  deposition,  the  custody  of  the  infant  James  VI, 
her  son,  and  the  conduct  of  the  regency  became  the 
centre  of  the  war  of  factions.  Protestantism  sub- 
stantially triumphed  over  Catholicism ;  but  after  the 
death  of  'John  Knox'the  Calvin istic  and  Presbyterian 
system  which  he  had  installed  had  a  hard  struggle 
against  the  Episcopal  tendencies  which  ultimately 
proved  most  attractive  to  the  king  himself.  Many 
of  the  most  serious  sources  of  confusion  in  Scotland 
were  removed  by  the  arrangement  through  which 
James,  after  the  execution  of  his  mother,  became  the 
recognized  heir  to  the  English  throne,  but  the  antith- 
esis of  Presbyterianism  and  prelacy  remained  as  an 


44  POLITICAL  THEORIES 

issue  on  which  the  feuds  of  the  nobles  could  be 
fought  out,  and  it  produced  its  perfect  result  in  the 
reign  of  James's  son. 

More  intimately  connected  than  the  affairs  of  Scot- 
land with  the  general  movement  of  events  was  the 
desperate  conflict  in  the  Netherlands  by  which  the, 
United  Provinces  established  their  independence  of 
Spain.  Here,  too,  the  origin  of  the  trouble  was 
rather  political  than  religious.  Philip  II  introduced 
into  the  Netherlands  the  autocratic  administrative 
methods  which  he  employed  in  Spain.  They  were  in 
most  pronounced  conflict  with  various  rights  and 
privileges  secured  to  the  different  provinces  by  long- 
standing charters,  and  to  this  grievance  was  added 
the  fact  that  the  ancient  native  aristocracy  was  dis- 
placed in  influence  by  Spanish  officials.  Very  promi- 
nent in  the  new  policy  of  Philip  was  the  greatly 
increased  activity  of  the  Inquisition.  Calvinism  had 
become  strong  in  the  Netherlands,  especially  among 
the  lower  classes  of  the  people.  Under  Charles  V 
the  punishment  of  heretics l  had  been  systematically 
carried  on,  and  the  number  of  persons  executed  had 
reached  very  great  proportions ;  but  there  had  been 
no  tendency  to  resistance  among  the  victims.  Now, 
however,  the  announced  purpose  of  Philip  to  extirpate 
the  heretics  and  the  fear  that  the  summary  and 
drastic  methods  of  the  Spanish  procedure  were  to  be 


1  The  suppression  of  the  Anabaptists  in  Westphalia  caused  a  great 
influx  of  these  fanatics  into  the  Netherlands,  and  the  victims  of  the 
Inquisition  at  this  time  included  many  of  these  fugitives  and  many 
natives  who  had  imbibed  their  doctrines. 


THE  DUTCH  REPUBLIC  45 

introduced,  caused  a  serious  agitation  among  the 
lower  classes,  and  brought  them  into  harmony  with 
the  bourgeoisie  and  nobility,  whose  grievances  were 
of  a  primarily  political  character.  In  the  early  years 
of  the  reign  the  hostility  to  the  new  regime  was 
expressed  in  animated  protests  by  the  aristocracy  and 
in  a  number  of  popular  tumults.  Philip's  response 
was  the  despatch  of  the  Duke  of  Alva  with  a  Spanish 
army  to  govern  the  disaffected  region.  The  result  of 
Alva's  ruthless  policy  was  that  sporadic  murmuring 
and  riots  became  systematic  insurrection,  headed  by 
William  of  Orange  and  supported  by  all  the  Protes- 
tant —  especially  the  Calvinistic  —  powers  of  Europe. 
From  the  outset  the  limits  of  the  rebellion  were 
pretty  clearly  marked  by  the  predominance  of  the 
Reformed  faith,  and  in  the  various  phases  of  the  long 
struggle  the  decisive  obstacle  to  a  reconciliation 
proved  to  be  the  invincible  resolution  of  the  king 
never  to  tolerate  the  Protestant  faith  and  worship. 
Accordingly  the  final  repudiation  of  Philip's  authority 
in  1581  was  carried  out  by  the  northern  provinces 
only,  where  the  population  had  very  generally  ac- 
cepted the  doctrines  of  Protestantism,  and  the  Dutch 
Eepublic  entered  upon  its  career  through  a  clean-cut 
application  of  the  theory  that  denial  of  religious 
liberty  constituted  such  tyranny  as  justified  the  depo- 
sition of  the  tyrant. 

Thus  before  the  end  of  the  sixteenth  century  the 
creed  of  Luther  and  Calvin,  despite  the  pacific  teach- 
ings of  the  Reformers  themselves,  had  by  force  of 
circumstances  become  a  decisive  factor  in  the  political 


46  POLITICAL  THEORIES 

transformation  of  the  chief  powers  of  Europe.  Prot- 
estantism in  consequence  assumed  a  militant  aspect, 
and  out  of  the  turmoil  theories  of  Christian  duty  in 
the  state  were  developed  that  bore  little  resemblance 
to  the  ancient  ideal  of  passive  submission  to  estab- 
lished authority.  To  explain  the  proceedings  and 
the  triumphs  of  the  French,  the  Scottish  and  the 
Dutch  Calvinists,  a  thorough  and  aggressive  over- 
hauling of  political  dogma  was  required.  Some  of 
the  chief  works  by  which  this  was  effected  must  now 
receive  our  attention. 

2.    The  Vindicice  contra  Tyrannos 

The  controversial  literature  which  was  produced  in 
France  by  the  religious  wars  included  many  violent 
anti-monarchic  works  by  Catholic  as  well  as  by  Prot- 
estant writers.  The  latter  founcltheir  chief  inspira- 
tion in  the  affair  of  St.  Bartholomew's,  the  former  in 
the  abandonment  of  the  League  and  the  assassination 
of  the  Guises  by  Henry  III.  So  far,  however,  as 
philosophical  foundation  and  general  principles  were 
concerned,  the  Catholic  and  the  Protestant  debaters 
were  substantially  on  common  ground.  Both  alike 
justified  resistance  to  a  French  king  on  the  general 
principle  that  under  certain  circumstances  a  king  be- 
came a  tyrant  and  hence  an  outlaw,  and  on  the  par- 
ticular principle  that  under  the  French  constitution 
the  monarch  was  subject  to  pretty  well  denned  limita- 
tions. Among  the  earliest  and  most  influential  dem- 
onstrations of  both  these  principles  were  the  two 
Huguenot  works :  Franco-  Gallia,  by  the  distinguished 


HOTMAN'S  FRANCO-GALLIA  47 

jurist,  Francis  Hotman,  and  Vindicice  contra  Tyran- 
nosy  published  under  the  pseudonym  of  Stephanus 
Junius  Brutus  and  written  probably  by  either  Hubert 
Languet  or  Duplessis-Mornay.  To  these  works,  and 
especially  the  latter,  our  attention  may  be  confined.1 

The  Franco- Gallia^  published  in  1573,2  limited 
itself  practically  to  the  demonstration  that  France 
was  never,  in  its  constitutional  origins,  an  absolute 
monarchy ;  but  that,  on  the  contrary,  a  general  as- 
sembly (if  the  nation  had  exercised  the  highest  politi- 
cal powers  throughout  the  early  history  of  the 
Franks,  and  during  the  Merovingian,  the  Carolingian 
and  the  later  periods.  Hotman's  historical  erudition 
was  very  great,  and  he  massed  with  powerful  effect 
the  quotations  that  he  gathered  from  the  ancient 
chronicles  to  show  that  kings  were  chosen  and  de- 
posed, legislation  was  enacted,  and  all  the  most  im- 
portant political  business  was  transacted  in  the  annual 
public  council  of  the  Franco-Gallican  state.  But  the 
work  did  not  go  into  the  field  of  general  political 
theory  and  affected  the  development  of  that  system 
of  thought  only  by  suggesting  and  illustrating  the 
applicability  of  the  historical  method  to  the  questions 
at  issue. 

Of  an  entirely  different  character  was  the  Vindicice 
contra  Tyrannos,  or  The  Grounds  of  Rights  against  / 

1  Prominent  among  the  Catholic  anti-monarchic  works  in  France 
were :  Boucher,  De  justa  Henrici  III  abdicatione ;  Rossaeus,  De  junta 
reipuUicce    Christiana   in   Reges   impios  et   Jicereticos   auctoritate.      See 
Janet,  Histoire  de  la  science  politique,  II,  82  et  seq. ;  Treumann,  Die 
Monarchomachen ;  Hallam,  Literature  of  Europe,  Vol.  II,  chap.  iv. 

2  I  have  used  an  English  translation  published  in  London,  1738. 


48  POLITICAL  THEORIES 

Tyrants.1  This  embodied  a  most  comprehensive 
treatment  of  the  foundation  of  monarchic  authority, 
and  presented  from  the  Protestant  point  of  view  a 
doctrine  which  radically  transformed  the  attitude 
that  had  been  taken  under  the  instruction  of  the 
leading  Reformers.  The  work  is  systematic  as  well 
as  comprehensive,  and  the  style  exhibits  that  same 
glowing  quality  which  marked  the  expression  in  St. 
Bernard,  some  centuries  earlier,  of  the  best  traits  of 
the  Gallic  temperament  through  the  medium  of  the 
Latin  language  exquisitely  handled. 

The  Vindicice  answers  four  questions,  of  which  the 
first  is :  Whether  subjects  are  bound  to  obey  a  prince 
who  enjoins  what  is  contrary  to  the  law  of  God.  To 
this  a  negative  answer  is  obvious,  based  on  the  posi- 
tive injunction  of  the  Scriptures,  on  the  incidents  of 
the  procedure  through  which  Saul  was  set  up  as  king 
over  Israel,  and,  incidentally,  on  the  analogy  of  the 
feudal  relationship,  under  which  a  vassal  is  bound  to 
obey  the  superior  rather  than  the  inferior  lord  in  case 
their  commands  are  in  conflict.2  This  answer  is  not 
different  from  that  which  had  been  given  by  Luther 
and  Calvin. 

The  second  question  is  not  of  the  right  to  disobey, 
but  of  the  right  to  resist:  Whether  it  is  lawful, 

1  Published  in  Latin  in  1579  and  often  thereafter.     I  have  used  the 
edition  of  1595,  annexed  to  a  Latin  version  of  Machiavelli's  Prince. 

2  "  Reges  omnes  Dei  vassallos  esse,  omnino  statuendum  est.  .  .  . 
Si  Deus  est  domini  superioris  loco,  rex  vassalli,  quis  non  domino  potius 
quam  vassallo  obediendura  pronunciet?     Si  Deus  hoc  prsecipit,  rex 
contra,  quis  regi  adversus  Deum  obsequium  denegantem  rebellem 
judicet?  .  .  .  ergo  non  modo  non  tenemur  obedire  regi,  contra  legem 
Dei  quid  imperanti,  verum  etiam  si  obediamus,  rebelles  sumus." 


VINDICI^E  CONTRA  TYRANNOS  49 

and  if  so,  to  whom,  in  what  manner,  and  to  what 
extent,  to  resist  a  prince  who  is  violating  the  law  of 
God  and  laying  waste  the  church.1  The  answer  to 
this  question  presents  formally  and  completely  the 
theory  of  contract  as  determining  the  reciprocal 
rights  and  duties  of  God,  king  and  people,  and 
presents  the  theory  in  such  form  as  to  exhibit  per- 
fectly the  two  sources  of  this  celebrated  doctrine  of 
politics  —  Old  Testament  history  and  the  Roman 
law. 

It  is  assumed  at  the  outset,  in  the  long  familiar 
manner,  that  the  relation  of  God  to  the  people  of 
Israel  must  be  accepted  as  the  type  of  his  relation  to 
every  Christian  people.  But  the  controlling  principle 
in  the  Old  Dispensation  was  covenant  or  contract 
(fcedus).  God  chose  Israel  as  his  peculiar  people, 
and  they  on  their  part  agreed  to  maintain  his  exclu- 
sive worship.2  When  royalty  was  set  up  this  cove- 
nant was  confirmed  and  renewed.  On  this  occasion 
the  installation  of  monarchy  involved  two  distinct 
contracts.3  The  first  was  that  in  which  God,  on  the 
one  hand,  and  the  people  and  king,  on  the  other, 
engaged  to  maintain  the  ancient  relation  of  the 
chosen  people  as  the  church  of  God ;  the  second  was 
that  to  which  the  king  and  the  people  were  the 
parties,  the  former  agreeing  to  rule  justly  and  the 
latter  to  obey  him.  It  is  under  the  first  of  these  two 

1  "  An  liceat  resistere  principi  legem  Dei  violanti  et  ecclesiam  Dei 
vastanti :  quibus,  quomodo  et  quatenus  ?  " 

2  This  contract  was  made  by  Israel  at  Ebal  and  Gerizim.    Deut. 
xi,  29  and  xxvii,  et  seq. ;  Joshua  xxiv. 

8  2  Kings  xi ;  2  Chron.  xxiii. 

VOL.   II. —  E 


50  POLITICAL  THEORIES 

contracts  that  the  right  of  resistance  to  an  impious 
prince  is  manifest.  King  and  people  are  co-contrac- 
tors to  maintain  the  worship  of  God^  each,  therefore, 
is  responsible  for  the  fulfilment  of  the  obligation, 
and  each  is  authorized  to  restrain  the  other  from 
violating  it,  since  the  innocent  party  would  parti- 
cipate in  the  penalty  for  such  violation.  The  author 
of  the  VindicicB  elucidates  the  situation  by  copious 
references  to  the  Roman  law,  and  feels  no  incon- 
gruity in  construing  the  relation  of  man  to  his 
Creator  in  terms  of  the  rules  of  the  market-place.1 
In  the  Old  Testament  history  abundant  instances  are 
found  in  which  the  kings  enforced  upon  the  people 
conformity  to  their  pledge  to  maintain  the  worship 
of  God,  and  quite  as  many,  on  the  other  hand,  in 
which  the  people  constrained  the  kings  to  keep  the 
covenant,  or  deposed  them  for  the  failure  to  do  so. 

1  The  contract,  he  explains,  is  like  that  in  which  a  creditor  is 
secured  by  the  joint  and  several  obligation  of  two  or  more  debtors. 
"Videtur  Deus  fecisse  quod  in  dubiis  nominibus  creditores  facere 
solent,  ut  plures  in  eandem  summam  obligentur."  The  fact  that  the 
people  is  a  party  to  the  covenant  is  evidence  that  the  people  is  not 
regarded  by  God  as  in  that  servile  condition  to  which  the  courtiers 
assign  it ;  for  according  to  the  Digest  a  slave  is  incapable  of  contract- 
ing. But  perhaps  the  most  interesting  instance  of  the  author's  pre- 
occupation with  the  Roman  law  is  to  be  found  in  his  comments  on 
the  death  of  Saul.  The  king's  destruction  is  explained,  of  course,  as 
the  penalty  of  his  failure  to  keep  the  covenant  with  God.  But 
why,  the  author  asks,  was  his  army,  i.e.  the  people,  also  destroyed? 
It  must  have  been  because  of  their  joint  responsibility  with  him. 
For  God  would  not  avenge  the  sins  of  a  king  on  his  people,  or  of  a 
father  on  the  son.  "  Acerbum  est,  aiunt  iurisconsulti,  parentis  scelera 
filiorum  poenas  lui.  Alieni  sceleris  quemquam  poenas  pati  iura  non 
sinunt."  That  is,  the  author,  in  following  the  iurisconsulti,  forgets 
God's  own  words  :  "  visiting  the  iniquity  of  the  fathers  upon  the 
children  unto  the  third  and  fourth  generation." 


VINDICI^E  CONTRA  TYRANNOS  51 

But  the  right  of  the  people  thus  demonstrated,  to 
resist  a  king  who  is  deviating  from  his  duty  to  God, 
is  not  to  be  recognized  as  pertaining  to  the  masses  in 
general.  Action  can  be  taken  only  by  the  magis- 
trates or  the  assemblies  in  whom  the  power  of  the 
people  is  organized.  The  multitude  as  a  whole  — 
"that  monster  with  countless  heads"  —  is  incapable 
of  action ;  but  in  every  well-organized  realm  there 
are  princes,  peers,  patricians,  nobles,  etc.,  normally 
constituting  an  assembly  whose  function  is  to  see  to 
the  safety  of  the  state  and  the  church.  Private  citi- 
zens have  no  right  of  resistance  save  in  support  of 
the  magnates,  or  by  virtue  of  a  special  mandate  from 
God.1  The  maintenance  of  religion,  thus,  is  assigned 
to  the  estates  of  the  realm,  and  the  reference  that  the 
author  makes  to  the  deeds  and  doctrines  of  Constance 
and  Basel  indicates  with  sufficient  clearness  both  the 
source  and  the  conservative  character  of  his  theory. 

The  third  question  propounded  in  the  Vindicice 
concerns  the  right  of  resistance  on  other  than  reli- 
gious grounds :  Whether  and  to  what  extent  it  is 
lawful  to  resist  a  prince  who  is  oppressing  and  destroy- 
ing the  state?2  The  answer  embodies  a  complete 
and  systematic  demonstration  of  popular  sovereignty 
by  divine  right.  Royalty,  the  argument  runs,  is/ 

1  But  the  claim  to  a  special  mandate   must   be  most  carefully 
established  in  order  to  justify  action  by  a  private  man :  "  privates, 
ni  extra  ordinem  ad  id  munus  vocatos  evidenter  appareat,  suapte 
auctoritate  arma  se  capere  nullo  hire  posse." 

2  "  An  et  quatemis  principi  rempublicam  aut  opprimenti  aut  per- 
denti  resistere  liceat  ?    Item  quibus  id  et  quomodo  et  quo  iure  per- 
missum  sit  ?  " 


52  POLITICAL  THEOKIES 

merely  an  institution  of  convenience  for  the  benefit 
of  the  people.  God  sanctions  it  to  this  end.  A  king 
never  reigns  in  his  own  right ;  he  is  chosen  by  God 
and  is  installed  by  the  consent  of  the  people.1  The 
history  of  the  Israelites,  of  the  ancient  Greeks  and 
Romans,  and  of  the  French  monarchy  is  shown  to 
establish  this  principle.  "  No  one  is  born  a  king ;  no 
king  can  exist  per  se  or  can  reign  without  a  people. 
But  on  the  contrary  a  people  can  exist  per  se  and  is 
prior  to  the  king  in  time."  Even  where,  as  in 
France,  the  kingship  is  hereditary,  the  essential  fact 
is  that  the  choice  of  the  king  is  voluntarily  limited 
by  the  people  to  a  single  family.2  That  the  essential 
function  of  royalty  is  to  provide  for  the  welfare  of 
the  people,  is  obvious  from  the  nature  of  things. 

It  is  clear  at  the  outset  that  men  who  are  by  nature  free, 
impatient  of  subjection  and  born  rather  to  command  than  to 
obey,  have  not  deliberately  chosen  submission  to  another  and 
renounced  the  law  of  their  very  nature,  as  it  were,  except  for 
the  sake  of  some  great  advantage.3 

Taking  from  Seneca  the  conception  of  a  primeval 
"  golden  age,"  in  which  government  was  unnecessary 
and  no  one  would  have  had  a  crown  if  he  could  have 
picked  it  up  in  the  street,  the  author  ascribes  the 
origin  of  the  kingship  to  the  necessity  for  leadership 

1  The  whole  argument  consists  in  a  formal  proof  that  "  electionem 
regis  tribui  Deo,  constitutionem  populo." 

2  "  Qui  vero  ex  ea  stirpe  proximi  sunt  non  tarn  reges  nascuntur 
quam  fiimt ;  non  tarn  reges  quam  regum  candidati  habentur." 

8  "  Primum  sane  palam  est,  homines  natura  liberos,  servitutis  im- 
patientes,  et  ad  imperandum  magis  quam  ad  parendum  natos,  non 
nisi  magnse  cuiusdam  utilitatis  causa  imperium  alienum  ultro  elegisse, 
et  suae  quasi  naturae  legi,  ut  alienam  ferrent,  renunciasse." 


VINDICLE  CONTRA  TYRANNOS  53 

that  arose  when  private  property  began  to  be  recog- 
nized.1 Monarchs  were  appointed  to  determine  rights 
at  home  and  to  lead  armies  abroad ;  but  they  always 
remained  subject,  in  their  powers  and  actions,  to  the 
end  for  which  they  were  created.  Such  being  the 
original  character  of  royalty,  it  is  easy  for  the  author 
to  prove,  as  he  does  at  length  in  most  eloquent 
fashion,  that  the  sweeping  claims  of  power  made  by 
courtiers  (aulici  nostri)  on  behalf  of  kings,  especially 
in  reference  to  property  and  taxation,  are  baseless.2 
The  true  principle  on  which  to  explain  the  whole 
relation  of  king  to  people  is  that  of  the  second  con- 
tract already  referred  to.  This  is  entered  upon' 
between  the  king,  on  the  one  side,  and  the  magnates, 
representing  the  whole  people,  on  the  other.  The 
form  is  that  of  the  Roman  stipulatio,  and  the  people 
has  the  part  of  stipulator,  which,  the  author  observes, 
is  at  law  the  more  advantageous.  The  people  asks 
of  the  king  whether  he  will  reign  justly  and  accord- 
ing to  law ;  he  answers  that  he  will.  Thereupon  the 
people  pledges  itself  to  yield  faithful  obedience  so 
long  as  he  keeps  his  promise.  Thus  the  king  con- 
tracts absolutely ;  the  people  conditionally ;  hence 
the  failure  of  the  king  to  fulfil  the  condition  frees 

1  "  Cam  igitur  Meum  illud  et  Tuum  orbem  invasissent  ac  de  rerura 
dominio  inter  cives,  inox  vero  de  finibus  inter  finitimos,  bella  exori- 
rentur  .  .  .  reges  creati  sunt  ut  domi  ius  dicerent,  f  oris  vero  exercitum 
ducerent." 

2  "  Statuamus  tandem  oportet  reges  patrimonii  regii  non  proprie- 
taries, uon  fructuarios,  sed  administrators  tantum  esse.    Cumque  ita 
sit,  multo  sane  minus  aut  rerum   privatarum  cuiusque  aut  rerum 
publicarum  quse  ad  singula  municipia  pertinent  proprietatem  usum- 
f ructumve  sibi  tribuere  posse." 


54  POLITICAL  THEORIES 

the  people  ipso  iure  from  its  obligation.  This  com- 
pact completes  the  relationship  which  is  inchoate  in 
the  first  compact  of  king  and  people  with  God. 

In  the  first  covenant  or  pact,  piety  comes  under  the  bond ; 
in  the  second,  justice.  In  the  one  the  king  promises  dutifully 
to  obey  God;  in  the  second,  justly  to  rule  the  people:  in  the 
one,  to  provide  for  the  glory  of  God ;  in  the  other,  to  maintain 
the  welfare  of  the  people.  In  the  first  the  condition  is,  if  you 
observe  my  law ;  in  the  second,  if  you  secure  to  each  his  own. 
Failure  to  fulfil  the  first  pact  is  properly  punishable  by  God ; 
failure  to  fulfil  the  second,  legitimately  by  the  whole  people, 
or  by  the  magnates  of  the  realm  (regni  proceres)  who  have 
undertaken  to  watch  over  the  whole  people. 

That  such  is  the  true  foundation  of  all  royal 
governments  is  evident,  the  author  holds,  from  the 
coronation  pledges  and  oaths  that  have  appeared 
throughout  history;1  but  even  without  these,  it 
would  be  manifest  from  nature  itself.  Hence  the 
definition  of  tyranny  is  easy :  the  tyrant  is  he  who 
wilfully  disregards  or  violates  the  contract  through 
which  alone  monarchic  dominion  is  legitimate.  The 
usurper,  or  tyrant  absque  titulo,  is  an  outlaw,  and 
resistance  to  him  is  the  right  of  every  one,  even  the 
private  citizen,  under  natural  law,  under  the  law  of 
nations  and  under  civil  law.  As  to  the  tyrant  exer- 
citio,  that  is,  the  monarch  whose  title  is  valid  but 
who  has  violated  the  contract  with  his  subjects,  the 
representatives  of  the  people,  having  assured  them- 

1  He  dwells  with  special  unction  on  the  famous  formula  employed 
by  the  Justicia  of  Aragon  in  the  installation  of  the  king :  "  We,  who 
are  as  good  as  you  and  are  more  powerful  than  you,  choose  you  as 
king,"  etc. 


VINDICL3S  CONTRA  TYRANNOS  55 

selves  that  his  offences  are  not  due  to  ignorance, 
unintentional  error  or  mere  incompetence,  but  are 
wilful  and  deliberate,  must  constrain  and,  if  neces- 
sary, depose  him.  Such  is  their  duty;  they  stand 
toward  the  king  in  the  position  of  co-guardian  (con- 
tutor\  to  see  that  he  does  not  violate  his  obligation 
to  his  ward  (pupillus),  the  people.1  The  council  of 
the  realm  is  in  the  state  what  the  general  council 
is  in  the  church ;  and  as  it  has  been  universally  ad- 
mitted that  the  general  council  may  depose  a  pope, 
even  though  he  claims  to  be  king  of  kings,  with  how 
much  better  warrant  may  the  council  of  the  realm 
depose  a  monarch.  But  private  citizens  cannot  act 
in  this  matter.  Resistance  to  the  tyrant  exercitio  is 
the  right  only  of  the  whole  people,  with  whom,  as 
contrasted  with  individuals,  the  governmental  com- 
pact is  made;  and  the  populus  universus  is  repre- 
sented in  the  one  function  as  in  the  other  by  the 
great  council  of  the  magnates.2 

The  fourth  question  debated  in  the  Vindicice  is :  V 
Whether  it  is  the  right  and  duty  of  princes  to  inter-  i 
fere  in  behalf  of  neighbouring  peoples  who  are  op-  ( 
pressed  on  account  of  adherence  to  the  true  religion,  / 
or  by  any  obvious  tyranny.8  The  answer  is  affirma-/ 
tive  on  both  branches  of  the  question,  and  the 


1  Here  the   author's  anxiety  to  fortify  his  doctrine  with  legal 
principles  leads  to  a  change  of  base;  there  is  a  considerable  differ- 
ence between  a  stipulator  and  a  contutor. 

2  "  Singulis  neque  a  Deo  neque  a  populo  gladius  concessus  est." 

8  "  An  iure  possint  aut  debeant  vicini  principes  auxilium  ferre 
aliorum  principum  subditis,  religionis  purse  causa  afflictis  aut  mani- 
f esta  tyrannide  oppressis  ?  " 


56  POLITICAL  THEORIES 

ground  is,  in  the  one  case  the  unity  of  the  Christian 
church,  in  the  other  the  unity  of  humanity,  involv- 
ing respectively  duty  to  God  and  duty  to  one's 
neighbour.  As  the  preceding  questions  are  designed 
to  justify  the  resistance  of  the  Huguenots  to  Charles 
IX  and  Henry  III,  so  this  is  designed  to  justify  the 
action  of  Elizabeth  of  England  and  some  of  the 
Protestant  princes  of  Germany  in  extending  aid  to 
the  struggling  Huguenots.  And  as  the  doctrine  of 
popular  sovereignty  is  the  outcome  of  the  one  under- 
taking, so  an  enlightened  view  of  international 
solidarity  is  strongly  presented  in  the  other. 

3.     George  Buchanan 

The  chief  contribution  to  political  theory  which 
was  due  primarily  to  the  Scottish  Keformation  was 
Buchanan's  work  On  the  Sovereign  Power  among\ 
the  Scots,1  published  in  1579.  John  Knox's  literary 
productions  were  multifarious  and  influential,  but 
they  embodied  no  general  or  systematic  treatment 
of  politics.  Buchanan,  however,  in  the  monograph 
named,  undertook  a  scientific  apology  for  the  anti- 
monarchic  proceedings  of  recent  times,  especially  in 
Scotland,  and  dedicated  the  work,  with  grim  Presby- 
terian satisfaction,  to  his  royal  ward,  the  young 
James  VI.  The  central  point  of  the  whole  subject, 
Buchanan  assumed,  was  the  distinction  between  king 
and  tyrant,  and  the  elaboration  of  this  distinction 
is  the  general  theme  of  the  work.2  In  literary  form. 

1  De  lure  Regni  apud  Scotos.     Appended  to  his  Rerum  Scoticarum 
Historia,  Aberdeen,  1762.  2  Cf.  sees.  6  and  7. 


! 


ORIGIN  OF  GOVERNMENT  57 

as  well  as  in  content  the  monograph  reflects  very 
faithfully  the  humanistic  erudition  of  which  the 
author  was  so  famous  a  master. 

Society  and  government  originate,  Buchanan  holds, 
in  the  effort  of  men  to  escape  from  the  primordial 
state  of  nature,  when,  as  Polybius  had  described  it, 
they  lived  the  bestial  life,  without  law  and  without 
fixed  abodes.1  The  impulse  to  social  life  came  partly 
from  the  sense  of  self-interest,2  but  rather  more  fun- 
damentally from  the  instinct  of  association  implanted 
by  nature,  or,  better,  by  God.  In  society  thus  con- 
stituted, the  attribute  essential  to  continuous  exist- 
ence is  justice,  as  in  the  physical  man  it  is  health. 
The  function  of  the  king,  therefore,  is  to  maintain 
justice ;  and  Buchanan  throughout  his  work  recurs 
again  and  again  to  the  Platonic  analogy  of  the  true 
ruler  and  the  skilled  physician.  But  experience 
teaches  men  that  justice  is  to  be  maintained  rather 
by  laws  than  by  kings ;  hence  it  is  that  the  rulers, 
originally  unlimited  in  power,  have  with  the  develop- 
ment of  enlightenment  been  always  subject  to  law.3 
The  maker  of  the  law  is  the  people,  acting  through 
a  council  of  representatives  chosen  from  all  classes, 
and  the  interpreter  of  the  law  should  be,  not  the 
king,  but  a  body  of  independent  judges.  Nor  is  the 

1 ...  tempus  quoddam  cum  homines  in  tuguriis  atque  etiam 
antris  habitarerit,  ac  sine  legibus,  sine  certis  sedibus  palantes  vaga- 
rentur.  —  Sec.  8. 

2  He  notes  very  acutely  the  danger  of  considering  self-interest  as 
the  essential  principle  of  social  unity;  for  it  may  be  adapted  as  well 
to  the  dissolution  as  to  the  consolidation  of  a  community.  Cf.  sec.  9. 

8  "  Regum  insolentia  legum  fecit  desiderium." 


58  POLITICAL  THEORIES 

king  even  to  fill  the  gaps  which  are  sure  to  ap-. 
pear  in  the  law  from  time  to  time.  His  function  in 
relation  to  the  law  is  reduced  to  the  minimum ;  and 
yet,  Buchanan  holds,  his  task  is  a  most  substantial 
and  difficult  one,  —  namely,  to  maintain  the  general 
morale  of  the  state  by  setting  before  the  citizens  a 
high  example  of  rational  and  virtuous  living.1 

Having  evolved  this  rather  vague  and  visionary 
concept  of  the  king,  the  author  bodies  forth  the 
figure  of  the  tyrant,  whose  characteristics  are  ex- 
pressed with  all  the  rhetorical  frenzy  that  classical 
literature  had  rendered  conventional.2  Essentially, 
however,  the  tyrant  is  a  monarch  who  either  has 
obtained  his  power  without  the  consent  of  the  people, 
or  has  exercised  it  otherwise  than  in  conformity  to 
justice.  In  the  former  case  he  is  a  mere  outlaw  — 
an  enemy  of  the  race,  and  at  the  mercy  of  every  one ; 
in  the  latter  case,  he  is  by  the  nature  of  the  office,  as 
set  forth  above,  liable  to  the  people  for  violation  of 
the  law,  which  is  the  expression  of  justice  as  con- 
ceived by  the  given  society.  Buchanan  controverts 
with  great  skill  and  precision  the  arguments  drawn 
from  the  Scriptures  for  passive  obedience  to  tyrants. 
St.  Paul's  injunction  of  submission  to  the  higher 
powers  is  subjected  to  an  especially  careful  interpre- 
tation, the  substance  of  which  is  that  the  Apostle  was 
addressing  those  who  were,  like  the  Anabaptists, 


1  Sec.  39. 

2  Cf.  the  description  of  the  tyrant's  life,  with  "  horror,"  "  metus," 
"faces  Furiarum,"  "bellum,"  and  all  the  rest  of  the  conventional 
accompaniments. 


BUCHANAN  ON  TYRANNICIDE  59 

tending  to  disregard  all  social  and  political  institu- 
tions, and  that  the  command,  therefore,  referred  to 
authority  in  general  and  not  to  the  persons  who  at 
any  time  exercised  the  authority.1  In  view  of  this 
construction  of  the  injunction  to  obedience,  together 
with  the  express  command  of  the  Lord  that  the 
wicked  be  cut  off  and  removed  out  of  the  midst  of 
the  people,  Buchanan's  conclusion  is  that  a  tyrant 
may  be  slain  with  impunity.2 

The  whole  basis  of  the  relation  between  king  and 
people,  particularly  in  the  Scottish  realm,  is  summed 
up,  Buchanan  holds,  in  the  terms  of  a  contract.  A 
hereditary  right  to  exercise  royal  power  has  been 
granted  by  the  people,  but  it  is  not  in  human  nature 
that  such  power  be  given  and  obedience  pledged 
without  some  consideration,3  and  the  consideration 
in  this  case  is  the  promise  to  conform  to  justice  and 
law  in  the  exercise  of  the  power.  Violation  of  the 
terms  of  the  pact  by  either  party  dissolves  the  bond 
and  releases  the  other  party  from  further  obligations. 
But  the  king  whose  conduct  has  such  an  effect  and 
who  thus  promotes  the  destruction  of  human  society 
becomes  a  tyrant  and  an  enemy  of  the  people,  and  is 

1  Sees.  60-70.    Paul,  he  says,  wrote  just  what  would  be  written  now 
to  the  Christians  living  under  the  rule  of  the  Turks  —  to  submit  to 
overwhelming  force  in  the  interest  of  peace,  though  without  any  im- 
plication that  the  Turkish  power  is  in  the  true  sense  legitimate. — 
Sec.  70. 

2  Sees.  53-56,  86. 

8  Habet  humanus  animus  sublime  quiddam  et  generosum  natura 
insitum  ut  nemini  parere  velit  nisi  utiliter  imperanti ;  neque  quicquam 
est  valentius  ad  continendam  humanam  societatem  quam  benefici- 
orum  vicissitude.  —  Sec.  55. 


POLITICAL  THEORIES 

therefore  the  object  of  a  just  war ;  and,  when  such  a 
war  has  once  begun,  it  is  lawful  for  not  only  the 
people  as  a  whole  but  even  for  individuals  to  slay  the 
enemy. 

Tyrannicide,  thus,  is  in  last  resort  a  just  device  for 
maintaining  the  reign  of  law  among  a  people.  But 
before  this  last  stage  is  reached  there  must  be  some 
way  in  which  the  people  can  proceed  in  seeking  to 
confine  the  king  to  legal  paths.  Who  shall  call  him 
to  judgment?  Buchanan's  answer1  to  this  crucial 
question  lacks  altogether  the  degree  of  clearness 
attained  in  the  Vindicice.  It  must  be,  he  says,  the 
whole  people,  who  alone  are  above  the  law.  But 
what  if  there  be,  as  is  always  the  case,  a  difference 
of  opinion  among  the  people  ?  Then  the  majority 
must  decide.  But  what  if  the  majority,  from  timidity 
or  negligence  or  venality,  stand  by  the  king  ?  Then 
they  must  be  considered  bad  citizens,  and  the  decision 
must  be  made  by  the  good  citizens,  who  will  always 
be  on  the  side  of  liberty  and  decency. 

This  very  impotent  conclusion  exhibits  the  bank- 
ruptcy of  his  whole  theory,  as  a  practical  scheme  for 
judging  institutions.  The  final  judgment  on  the 
ultimate  issue  in  the  state  is  to  rest  with  the  "  good  " 
citizens ;  but  there  is  no  criterion  for  determining 
who  are  "  good  "  citizens  except  that  they  decide  this 
issue  in  a  certain  way.  Buchanan,  indeed,  concedes 
the  bankruptcy  of  his  theory  by  the  remark :  "  But 
even  if  the  whole  people  (tota  plebs)  should  dissent 
[from  proceeding  against  the  king],  this  has  nothing 

1  Sees.  76-80. 


SYSTEMATIC  POLITICS  61 

to  do  with  our  discussion  ;  for  we  are  inquiring  not 
what  will  happen  but  what  can  justly  happen." 

4.   Johannes  Althusius  /j~O-/^^ 

The  systematic  political  doctrine  which  embodies 
most  distinctly  the  influence  of  conditions  in  the 
Netherlands  at  the  end  of  the  sixteenth  century  is 
that  of  Althusius,  the  German  jurist.  This  philoso-  • 
pher  was  for  thirty-four  years  (1604-1638)  chief 
magistrate  of  Emden,  an  imperial  city  on  the  frontier 
of  the  new  Dutch  Republic;  and  both  in  practical 
activity  and  in  doctrinal  conviction  he  manifested  the 
fullest  sjanpathy  with  the  religious  and  political  ideals 
of  the  people  who  were  just  freeing  themselves  from 
Spain.  His  work  on  political  theory,  Systematic 
Politics,  confirmed  by  Examples  from  Sacred  and 
Profane  History?  was  published _in_its-eomplete  form 
in  l^^r^dreDr~t"Ee""familiarity  with  the  situation  in  .7 
the  Netherlands  had  produced  its  fullest  effect  on  the 
writer's  mind.2 

The  salient  features  of  Althusius's  system  are :  (1)  ^1 
exhaustive  analysis  and  application  of  the  contract  -*£rv , 
theory   in   the   explanation   of   social   and    political 
organization ;    (2)  a  clear  and  precise  conception  of 
sovereignty;    (3)  the  ascription   of   sovereignty   ex- 

1  Politica  methodice  Digesta,  Exemplis  sacris  et  profanis  illustrata. 
I  have  used  the  third  edition,  1614.     For  the  account  of  Althusius's 
life  I  have  followed  implicitly  the  exhaustive  monograph  of  Gierke : 
Johannes  Althusius  und   die  Entwicklung  der  naturrechtlichen  Staats- 
theorien  (Breslau,  1880). 

2  The  work  was  dedicated  to  the  Estates  of  Friesland,  one  of  the 
United  Provinces,  and  in  the  preface  the  revolt  from  Spain  is  glorified 
as  a  realization  of  the  theory  of  the  work. 


62  POLITICAL  THEORIES 

clusively  and  immovably  to  the  people ;  and  (4)  a 
conception  of  "  people  "  which  is  incompatible  with 
any  idea  of  a  "  state  "  except  that  of  a  confederacy 
of  lesser  organized  units. 

Every  species  of  associated  life  (consociatio)  among 
human  beings  has  its  foundation,  Althusius  holds, 
in  an  agreement  or  contract  to  which  the  individuals 
are  parties,  and  involves  (1)  a  body  of  rules  in  accord- 
ance with  which  this  society  is  to  be  conducted,  and 
(2)  a  relationship  of  command  and  obedience  among 
the  members  for  the  administration  of  these  rules. 
Human  society  in  its  most  general  aspect  consists  of 
a  vast  series  of  associations,  rising  with  increasing 
degrees  of  complexity  from  the  family,  through  the 
corporation,  the  commune,  the  province,  to  a  climax 
in  the  state.  These  various  species  of  social  organi- 
zation, with  all  their  infinity  of  subclasses,  are  most 
diverse  in  their  purposes,  but  all  alike  have  the  char- 
acteristic stated  above :  in  each  the  given  end  condi- 
tions the  administration  of  its  affairs,  and  the  essence 
of  the  corporate  life  inheres  in  the  contract  by  which 
the  individual  members  unite  for  the  achievement  of 
that  end. 

The  public  associations  with  which  politics  is 
chiefly  concerned  are  formed  by  successive  consoli- 
dations. Families  unite  to  form  communities,  viz. 
villages,  parishes,  towns,  cities  ;*  these  unite  to  form 
provinces  ;  and  the  latter  in  turn  unite  with  the  cities 
or  each  other  to  form  the  highest  type,  the  state 

1  Vici,  pagi,  oppida  and  civitates  are  various  forms  of  the  lower 
political  corporations. 


ALTHUSIUS  ON  SOVEREIGNTY  63 

(politia,  imperium,  regnum,  populus,  respiiblica).  The 
state  he  defines  as  "a  general  public  association  in 
which  a  number  of  cities  and  provinces,  combining 
their  possessions  and  their  activities,  contract  to  es- 
tablish, maintain  and  defend  a  sovereign  power."1 
From  this  it  follows  —  and  Althusius  emphasizes 
the  point  again  and  again  —  that  the  members  of 
the  state  are  not  at  all  the  individuals  who  reside 
within  its  limits,  but  the  lesser  corporations  (cities 
and  provinces)  through  whose  contractual  union  it 
comes  into  existence. 

Sovereignty  (maiestas)  is  denned  as  the  supreme 
and  supereminent  power  of  doing  what  pertains  to 
the  spiritual  and  bodily  welfare  of  the  members  of 
the  state.  This  power  inheres,  by  the  very  nature 
of  the  association,  in  the  people  —  the  totality,  that 
is  of  the  members  of  the  state.  Not  each  member  is 
sovereign,  but  the  members  as  an  aggregate.  Like 
all  the  anti-monarchic  writers,  Althusius  illustrates 
by  the  dictum  of  the  Digest :  "  What  is  owed  to  a 
corporation  is  not  owed  to  its  individual  members ;"2 
and  he  ascribes  sovereignty  to  the  corporation,  not  to 
its  members.  But,  for  the  purpose  of  carrying  out 
the  functions  of  the  state,  duties  may  be  distributed 
among  agents  of  the  sovereign,  and  it  is  in  this  capac- 
ity alone  that  kings  and  magistrates  exercise  author- 

1  Universalis  publica  consociatio,  qua  civitates  et  provincise  plures 
ad  ius  regni  mutua  communicatione  rerum  et  operarum,  mutuis  viribus 
et  sumptibus  habendum,  constituendum,  exercendum  et  defendendum 
se  obligant.  —  Chap,  xi,  sec.  1.  By  ius  regni  he  means,  as  he  later 
explains,  ius  maiestatis.  Cf.  xi,  13. 

fl  "  Quod  universitati  debetur  singulis  non  debetur." 


64  POLITICAL  THEORIES 

ity.  These  functionaries,  whatever  their  power  and 
jurisdiction  in  reference  to  the  individuals,  are  by 
the  very  nature  of  the  case  themselves  subject  to  the 
people  as  a  whole.  This  appears  not  only  from  the 
nature  of  every  association,  in  which  the  members 
unite  for  a  certain  end  and  retain  necessarily  control 
over  the  means  to  that  end,  but  also  from  the  nature 
of  man  himself ;  for  all  men  being  naturally  free  and 
equal,  the  exercise  of  authority  by  one  over  the  rest 
must  be  based  on  the  consent  of  the  latter.  Sovereign 
power,  therefore,  when  properly  understood,  cannot 
conceivably  be  vested  in  any  individual  or  group  of 
individuals  less  than  the  whole  people.  It  cannot  be 
alienated  or  delegated  to  any  one  by  the  people ;  for 
it  is  the  essential  principle  of  social  cohesion ;  so  long 
as  there  is  a  people  it  must  possess  sovereignty.  The 
duty  of  every  officer  of  the  state,  then,  is  to  submit 
to  and  enforce  the  laws  in  which  the  will  of  the 
sovereign  people  is  embodied.1 

The  officials  of  a  state  fall  into  two  classes : 
first,  what  Althusius  calls  the  "ephors"  ;  second,  the 
"chief  magistrate"  (summits  magistratus).  Under 
the  first  head  he  includes  all  the  various  orders  and 
estates  in  provinces  and  cities  whose  function  it  is  to 
act  as  a  restraint  on  the  chief  magistrate.  These 
various  bodies,  or  individuals  endowed  with  similar 
powers,  are  representatives  of  the  whole  people,  and 
are  the  organs  for  the  expression  of  the  sovereign 
will.  In  default  of  action  by  them  on  any  point 

1  Bodin's  doctrine  of  sovereignty  (infra,  p.  96)  is  specifically  criti- 
cised and  rejected.  Cap.  ix,  sees.  20-22. 


ALTHUSIUS  ON  THE   TYRANT  65 

their  authority  devolves  for  exercise  upon  the  assem- 
bly of  the  whole  people.  Under  "  chief  magistrate  " 
Althusius  sets  forth  his  conception  of  royal  authority. 
The  king  is  the  executive  of  the  people,  to  secure  their 
interest  and  safety  by  carrying  out  the  laws.  His 
relation  to  the  people  is  that  of  agent  (mandatarius) , 
and  a  contract  between  him  and  the  people  is  per- 
fected through  his  choice  and  coronation.  He  under- 
takes to  govern  in  conformity  to  the  fundamental 
law  of  the  land,  and  they  agree  to  obey  him.  But,  | 
like  the  author  of  the  Vmdicice,  Althusius  assigns  to  \ 
the  people  the  advantageous  role  of  stipulator,  and 
maintains  that  the  obligation  of  the  king  is  absolute, 
while  that  of  the  people  is  only  conditional.1 

From  this  conception  of  the  relation  between  king 
and  people  the  familiar  conclusions  as  to  the  tyrant 
follow.  Deliberate  violation  of  the  law  or  dereliction 
in  his  duty  transforms  the  chief  magistrate  into  the  \ 
tyrant,  releases  the  people  from  the  pledge  of  obedi- 
ence, and  calls  into  action  the  right  of  resistance  and 
deposition 2  which  is  dormant  so  long  as  the  pact  is 
observed.  The  exercise  of  this  right  in  its  complete- 
ness pertains,  however,  only  to  the  people  in  their 
sovereign  totality,  acting  through  the  ephors ;  private 
individuals  may  merely  interpose  a  passive  resistance 
to  unlawful  commands,  and  defend  themselves  in  case 
their  natural  rights  are  assailed.  But  while  to  the 
assembly  of  ephors,  representing  the  sovereign  people, 
pertain  the  right  and  the  duty  of  resisting,  of  expel- 

1  Cap.  xxxviii,  sec.  30. 

2  "  I  us  resistentise  et  exauctorationis." 


66  POLITICAL   THEORIES 

ling  and  of  putting  to  death  the  tyrannical  chief 
magistrate,  to  each  member  of  the  confederacy,  acting 
through  its  particular  ephors,  belong  the  right  and  the 
duty,  as  an  ultimate  means  of  security  against  tyranny, 
of  renouncing  its  connection  with  the  rest  and  of  associ- 
ating itself  with  some  other  realm.  A  breach  of  the 
compact  out  of  which  the  state  arises  thus  justifies 
not  only  resistance  but  also  secession  ;  and  Althusius 
regards  this  doctrine  as  a  source  of  peculiar  strength 
to  the  state,  inasmuch  as  it  provides  an  effective  guar- 
antee for  the  observance  of  the  law  of  the  land.1 

The  most  cursory  view  of  the  system  of  Althusius 
reveals  that  it  is  a  generalization  from  the  constitu- 
tion of  the  Holy  Roman  Empire,  with  adaptations 
to  the  recent  conditions  in  the  Netherlands.  Apart 
from  the  framework  of  his  system  outlined  above, 
there  is  much  of  sound  and  suggestive  political  science 
in  his  work.  As  illustrations  may  be  cited  his  treat- 
ment of  the  functions  and  the  forms  of  government. 
The  ends  of  the  social  organization  being  twofold, 
namely,  the  spiritual  and  the  secular  welfare  of  the 
members,  the  functions  of  the  government  he  explains 
to  correspond.  First,  it  must  supervise  religion,  wor- 
ship, morals  and  education ;  second,  it  must  prescribe 
general  rules  of  social  conduct,  to  be  enforced  by 
penalties,  and,  in  addition,  must  carry  on  a  wide  range 
of  concrete  activities  for  the  positive  promotion  of  the 
general  welfare,  including  supervision  of  trade,  com- 
merce, coinage,  weights  and  measures,  the  adminis- 
tration of  the  public  revenues  and  property,  and  the 
1  Cap.  xxxiii,  sees.  53,  54,  76. 


FORMS  OF  GOVERNMENT  67 

protection  of  the  people  from  internal  perils  and  ex- 
ternal force.  Althusius  is  a  thorough  Calvinist,  and  his 
scheme  of  governmental  functions  includes  the  main- 
tenance of  a  state  church,  with  a  school  system  under 
its  direction,  and  a  far-reaching  censorship  of  morals.1 
As  to  the  forms  of  state,  he  rejects  entirely  the 
ancient  classifications  and  holds,  logically  enough, 
that  since,  by  the  very  nature  of  the  state,  sover- 
eignty must  be  in  the  people,  there  can  be  no  more 
than  one  form  of  state.2  Government,  however,  may 
be  monarchic  or  polyarchic,  according  as  the  chief 
magistrate  is  an  individual  or  an  assembly.  Yet, 
Althusius  points  out,  it  is  scarcely  conceivable  that 
any  purely  monarchic  or  purely  polyarchic  govern- 
ment could  exist;  there  will  always  be  in  a  monarchy 
various  councils  and  assemblies  to  share  the  respon- 
sibilities of  the  chief,  just  as  there  will  always  be 
in  a  polyarchy  a  concentration  of  functions  in  some 
individual  for  actual  execution.  Hence,  he  concludes, 
every  government  is  normally  a  mixed  form,  and  the 
names  monarchy,  aristocracy  and  democracy  have 
real  significance  only  as  designating  the  most  impor- 
tant element  in  each  specific  case. 

5.   Mariana 

While  the  bulk  of  the  anti-monarchic  doctrine  of 
the  period  we  are  considering  was  inspired  by  differ- 
ences of  creed  between  subjects  and  rulers,  one  very 
notable  exposition  of  this  doctrine  was  produced  in  a 
kingdom  where  the  Catholic  faith  and  royal  absolutism 

1  Cap.  xxx,  "  De  Censura."  2  Cap.  xxxix,  sec.  3. 


68  POLITICAL  THEORIES 

had  practically  undisputed  sway.  I  refer  to  the  work 
of  the  Spanish  Jesuit,  Juan  de  Mariana,  entitled, 
On  Kingship  and  the  Education  of  a  King?  published 
in  1599  and  dedicated  to  Philip  III  of  Spain.  The' 
extreme  views  embodied  in  this  work  as  to  the  limi- 
tations upon  royal  power  probably  represent  the  in- 
fluence of  the  extensive  researches  to  which  the 
author  had  long  devoted  himself  in  connection  with 
his  great  History  of  Spain  ;  2  like  Hotman  in  France, 
he  had  been  impressed  with  the  relatively  large  part 
played  by  the  Estates  in  the  growth  of  monarchy. 

In  developing  his  conception  of  kingship,  Mariana 
starts  from  the  natural  state  of  men,  which  he  de- 
scribes with  some  fulness  on  the  general  lines  of  Poly- 
bius's  idea.  In  the  beginning  men  lived  like  wild 
animals,  following  instinct  in  the  procurement  of  food 
and  the  propagation  of  their  kind,  bound  by  no  law 
and  subject  to  no  authority.  The  life  had  its  advan- 
tages :  nature  furnished  food  and  drink  and  shelter, 
through  fruits  and  streams  and  caves ;  cheating,  lying, 
avarice  and  ambition  were  unknown,  and  the  cares  of 
private  property  had  not  made  their  appearance.  But, 
on  the  other  hand,  man's  wants  were  greater  and  more 
varied  than  those  of  other  animals,  and  at  the  same 
time  he  was  less  adapted  than  they3  to  the  protection 
of  himself  and  his  young  from  the  dangers  that  in- 

1  De  Rege  et  Regis  Institutione.     I  have  used  the  edition  of  Mainz, 
1605. 

2  Historice  de  Rebus  Hispanice,  first  published  in  1592. 

8  Mariana  dwells  especially  on  the  helplessness  of  the  human 
infant  as  compared  with  the  young  of  other  animals.  De  Rege, 
Lib.  I,  chap.  i. 


THE   ORIGIN  OF   GOVERNMENT  69 

cessantly  arose  from  both  animate  and  inanimate 
forces  around  him.  It  was  to  overcome  these  dis- 
advantages that  men  grouped  themselves  together 
and  submitted  to  the  leadership  of  some  one  who  dis- 
played especial  capacity  in  promoting  their  welfare. 
This  was  the  origin  of  civil  society,  with  all  its  bless- 
ings to  the  race.  The  timidity  and  weakness  of  men 
were  the  divinely  implanted  qualities  through  which 
the  rights  of  humanity  were  to  be  developed.1 

The  earliest  and  natural  form  of  government,  thus, 
was  the  rule  of  one,  recognized  as  the  wisest  and 
unrestrained  by  anything  like  law.  But  the  re- 
straints of  law  were  soon  imposed  because,  in  the 
first  place,  the  wisdom  and  impartiality  of  the  mon- 
arch began  to  be  questioned,  and,  in  the  second  place, 
the  evil  passions  of  men,  growing  stronger  pari 
passu  with  the  increase  in  knowledge,  required  some 
general  system  of  restraint.  Laws  were  at  first  prob- 
ably very  few  and  very  simple ;  but  with  time  they 
increased  in  number  and  complexity  till  now,  Mariana 
mournfully  observes,  "  we  are  as  much  burdened  by 
laws  as  by  vices."  2  The  existence  of  law,  however,  by 
the  side  of  the  personal  ruler  he  regards  as  of  the 
essence  of  government,  and  on  this  assumption  he 

1  Sic  ex  multarum  rerum  indigentia,  ex  metu  et  conscientia  fragili- 
tatis,  iura  huraanitatis  (per  quarn  homines  sumus)  et  civilis  societas 
qua  bene  beateque  vivitur,  nata  sunt.  .  .  .    Omnis  hominis  ratio  ex  eo 
maxime  pendet,  quod  nudus  fragilisque  nascitur,  quod  alieno  prsesidio 
indiget  atque  alienis  opibus  adiuvari  opus  habet.  —  Ib.  id. 

2  Illud    etiam  fit  •verisimile,   leges    initio   paucissimas   exstitisse 
easque  paucis  et  apertis  verbis  nulla  explicatione  eguisse.     Legum 
multitudinem  tempus  et  malitia  invexit  tantura  ut  iam  non  minus 
legibus  quam  vitiis  laboremus.  — •  Ibid.,  I,  2. 


70  POLITICAL  THEORIES 

discusses  the  various  forms  of  authority  that  have 
arisen  among  men  since  the  first  natural  monarchy. 
Royalty  is,  on  the  whole,  his  preference.  Democracy 
is  plausible;  but,  he  points  out,  following  Pliny, 
wherever  power  is  in  a  group  of  men,  the  less  wise 
part  will  always  prevail,  "  for  the  votes  are  not 
weighed  but  merely  counted."**  Monarchy  re- 
strained by  law  has  less  evils  and  greater  efficiency 
than  the  other  forms.  It  is  likely,  however,  to  de- 
generate into  tyranny,  which  Mariana,  like  Aristotle, 
regards  as  consisting  in  monarchic  rule  exercised  for  \ 
the  good  of  the  ruler  rather  than  of  the  subject.  \ 
Against  this  species  of  government  Mariana  directs 
his  celebrated  and  very  radical  theory  of  the  right  of 
tyrannicide,  under  which  are  included  the  less  drastic 
forms  <fi>f  resistance.2 

The  broad  grounds  on  which  he  bases  the  justifi- 
cation ©f  ^resistance  are,  first,  the  sovereignty  of  the 
people,  and  second,  the  common  sense  of  mankind,  as 
exhibited  in  history.  The  royal  power  (regia  poles- 
tas)  has  its  source  in  a  grant  by  the  people  (respublica, 
populus) ;  but  in  making  this  grant  of  certain  rights 
(iura  potestatis)  the  people  reserves  to  itself  even 
greater  rights,  namely,  those  of  taxation  and  legisla- 
tion, and  puts  beyond  the  scope  of  royal  authority 
the  established  laws  concerning  the  succession  to  the 
throne,  the  revenue  and  the  form  of  religion.  The 

1  ...  in   omni   deliberatione  pars  sanior  a  peiori   superabitur; 
neque  enim  suffragia  ponderantur  sed numerantur.  —  Ib.  id.    Cf.  Pliny, 
Epistolce,  Lib.  II,  epist.  12. 

2  This  is  the  content  of  Lib.  I,  cap.  vi :  "  An  tyrannum  opprimere 
fas  sit?" 


MARIANA  ON  TYRANNICIDE  71 

people  is,  in  other  words,  above  the  monarch.  Fur- 
thermore, the  familiar  examples  of  the  deposition 
and  execution  of  tyrants  by  peoples  in  all  parts  of 
the  world  tell  plainly  of  the  belief  that  has  univer- 
sally prevailed,  and  this  universal  belief  is  properly 
to  be  taken  as  the  voice  of  nature  in  our  souls.1 
Hence  the  monarch  who  is  clearly  ruining  the  state 
is  justly  liable  to  removal  by  the  people.  Care 
must  be  taken  in  the  process  so  that  no  greater 
disturbance  than  is  necessary  ensue.  The  assembly 
of  the  people  must  warn  the  offender  to  reform,  and 
only  upon  his  refusal  may  proceed  to  extremities. 
When,  however,  the  people  through  its  assembly  has 
spoken,  then,  and  not  till  then,  may  the  private  in- 
dividual justly  slay  the  tyrant.  If,  however,  as  is 
likely  to  be  the  case,  the  assembly  is  not  permitted  to 
meet  or  to  act,  the  private  citizen  is  justified  in  kill- 
ing the  tyrant  at  discretion.2 

Mariana  is  fully  aware  of  the  dangers  that  are 
latent  in  this  doctrine.  He  concedes  that  it  practi- 
cally leaves  to  individual  judgment  the  decision  as  to 
who  shall  be  considered  a  tyrant  and  thus  strikes  at 
the  root  of  all  political  authority.  But  still  he  con- 

1  "  Et  est  communis  sensus  quasi  qusedam  naturae  vox  mentibus  nos- 
tris  indita,  auribus  insonans  lex,  qua  a  turpi  honestum  secernimus." 

2  But  giving  him  poison  to  drink  is  an  unchristian  method  of 
assassination.    It  makes  the  victim  in  a  sense  a  suicide,  and  suicide  is 
contrary  to  divine  and  natural  law.     Mariana  suggests,  however,  that 
poison  would  be  unobjectionable  if  it  could  be  administered  without 
the  participation  of  the  victim  in  the  procedure,  as,  for  example,  if 
his  clothing  could  be  saturated  with  some  deadly  substance  which 
would  be  absorbed  through  the  skin.     For  this  curious  discussion 
see  cap.  vii:  "An  liceat  tyrannum  veneno  occidere." 


72  POLITICAL  THEORIES 

aiders  the  principle  on  the  whole  a  useful  one.  Men 
are  in  general  strongly  disposed  to  submit  to  tyranny 
for  the  sake  of  quiet,  and  very  few  tyrants  get 
their  deserts;  it  is  therefore  a  salutary  restraint 
upon  princes  to  inculcate  the  belief  that  the  right  to 
assassinate  them  if  they  become  oppressive  belongs  to 
every  one,  and  that  the  authority  of  the  people  is 
above  their  authority.1 

But  the  normal  organization  of  monarchy  includes 
an  organ  of  the  popular  will  in  the  Estates  of  the 
Realm,  —  the  bishops,  nobles  and  representatives 
(procuratores)  of  the  cities.  This  assembly  is  what 
Mariana  calls  the  "state"  (respublica)  and  the  "people" 
(populus),  and  its  superiority  in  power  to  the  king  is 
established  in  a  full  examination  of  the  relative 
merits  of  absolute  and  limited  monarchy.2  The 
Estates  are  the  formulator  and  guarantor  of  the  fun- 
damental law  of  the  land,  by  which  the  monarch  is 
circumscribed.  In  their  control  rest  all  matters  of 
taxation,  of  succession  to  the  throne,  of  the  estab- 
lished religion  of  the  state.  The  prince  is  in  no  sense 
legibus  solutus;  besides  the  restraint  imposed  by  these 
fundamental  laws,  he  is  under  a  divine  and  natural 
obligation  to  submit  to  the  will  of  God,  and  even  to 
public  opinion  (populari  etiam  civium  opinione).  Mari- 
ana naturally  dwells  somewhat  insistently  on  the 
supreme  importance  of  the  ecclesiastical  element  in 
the  Estates  and  of  ecclesiastical  interests  in  the  policy 

1  Quod  caput  est,  sit  principi  persuasum  totius  reipublicse  maiorem 
quam  ipsius  unius  auctoritatem  esse.  —  De  Rege,  I,  vi. 

2  Lib.  I,  cap.  viii :  "  Reipublicae  an  regis  maior  potestas  sit  ?  " 


MARIANA  ON  PRACTICAL  POLICY  73 

of  the  king;  but  his  emphasis  on  these  points  is  not 
stronger  than  that  of  the  Protestant  controversialists, 
while  his  general  attitude  toward  absolutism  is  en- 
tirely in  harmony  with  theirs.  He  mourns  as  sin- 
cerely over  the  decline  of  the  power  of  the  Estates  in 
Spain  as  Hotman  mourns  over  the  like  decline  in 
France. 

One  book 1  of  the  De  Rege  is  devoted  to  a  discus- 
sion of  practical  questions  of  policy  and  administra- 
tion —  of  the  aims  and  methods  that  should  prevail 
in  the  royal  activity.  There  is  much  sound  judgment 
displayed  in  this  discussion,  and  also  at  times  some- 
thing of  that  peculiar  quality  which  gave  Machiavelli 
a  doubtful  reputation.  The  question  as  to  whether, 
in  the  choice  of  officers  of  the  state,  moral  character 
should  be  a  determining  consideration,  is  answered 
affirmatively  as  to  ecclesiastics  and  judges  and  nega- 
tively as  to  military  and  minor  administrative  posi- 
tions. Admirable  chapters  on  taxation  and  money 
respectively  set  forth  sound  principles  of  economics, 
and  exhibit  the  disastrous  effects  of  debasement  of 
the  coinage.  Poor  relief  is  treated  at  length,  and  the 
functions  of  the  ecclesiastical  institutions  in  the  case  of 
paupers  are  rationally  defended.  Even  the  "  tramp  " 
question  receives  much  attention2  —  a  fact  which 
contributes  to  the  general  impression  that  Spain  was 
in  a  demoralized  condition  from  the  social  and  eco- 
nomic point  of  view.  Mariana's  discussion  of  military 
policy  likewise  suggests  a  consciousness  of  something 

1  Book  III.    The  second  book  treats  of  the  education  of  a  prince. 

2  Lib.  Ill,  cap.  xiv. 


74  POLITICAL  THEORIES 

wrong  in  Spanish  affairs,  possibly  a  reflection  of  the 
failures  in  the  Netherlands  and  against  England. 
Apart,  however,  from  the  particular  references  to 
Spanish  affairs,  his  general  doctrine  is,  like  that  of 
Machiavelli,1  that  war  is  inevitable,  that  standing 
armies  therefore  are  indispensable,  and  that  the  main- 
tenance of  domestic  peace  is  conditioned  on  incessant 
warfare  abroad.  This,  then,  must  be  the  royal 
policy.  A  just  cause  can  generally  be  found,  but 
whether  it  can  be  or  not,  keep  the  soldiers  busy  with 
incursions  into  foreign  lands,  with  pillaging  of  heretic 
cities,  with  pure  piracy  and  brigandage  if  necessary, 
and  thus  relieve  the  citizens  of  the  burden  of  support- 
ing them.2  The  Machiavellian  spirit  of  which  this 
doctrine  is  an  example  is  manifest  also,  though  in  a 
less  brutal  form,  in  the  chapter  on  the  wisdom  (pru- 
dentia)  of  the  king.  The  supreme  art  of  royalty  is  to 
maintain  the  good  will  of  the  subjects.3  Hope  and 
fear  are  the  chief  means.  Not  so  much  actual  re- 
wards and  punishments,  but  the  expectation  of  them, 
is  effective.  If  a  subject  seeks  what  it  is  wrong  to 
give,  do  not  deny  him  so  flatly  as  to  extinguish  hope. 
Let  no  one  leave  the  royal  presence  in  sadness.  Un- 
pleasant duties  must  be  left  to  subordinates;  acts  of 
grace  should  be  performed  by  the  king  in  person.4 

1  Cf.  Political  Theories,  Ancient  and  Mediaeval,  p.  321. 

a  Contendo  pacem  domesticam  diu  stare  non  posse  nisi  arma  cum 
externis  exerceantur.  Neque  enim  aut  causa  iusta  deesse  potest  aut 
militum  [milites?]  otio  marcescere  pati  debemus;  sed  potius  mari 
terraque  praedas  agere,  in  alienos  fines  irrumpere,  urbes  prsesertim 
impiorum  diripiendas  militi  tradere.  —  Lib.  Ill,  cap.  v. 

8  "  Debet  rex,  nisi  id  nomen  exuat,  volentibus  imperare." 

4  Both  Aristotle  and  Machiavelli  had  set  forth  this  dictate  of  policy. 


MARIANA'S  POLITICAL  ETHICS  75 

Let  popular  tumults  be  suppressed  by  the  most 
violent  officials,  and  then  visit  upon  the  latter  the 
severest  penalties  for  any  dereliction  on  their  part 
that  can  possibly  be  discovered;  "thus  all  the  wicked- 
ness will  be  punished  and  yet  the  people  will  remain 
well-disposed  toward  the  prince."  "Nothing,"  says 
Mariana,  "is  more  effective  with  kings  or  subjects 
than  self-interest,  nor  can  there  be  any  lasting  com- 
pacts or  friendships  save  where  there  is  hope  of  some 
advantage."  *  Dissimulation,  also,  is  indispensable  to 
a  monarch.  Yet  Mariana  will  not  admit  in  principle 
the  right  of  the  king  to  lie  or  to  deceive;  only,  he 
will  get  into  serious  difficulties  unless  he  conceals  his 
purposes  and  maintains  a  benignant  aspect  when  con- 
ditions are  most  troublesome.2 

These  doctrines  in  the  field  of  political  ethics  give 
a  tone  to  Mariana's  work  that  distinguishes  it  from 
those  of  the  Protestant  advocates  of  popular  sover- 
eignty whom  we  have  considered.  Calvinistic  stand- 
ards of  morality  were  notoriously  of  a  more  rigid  and 
austere  type  than  those  of  the  old  creed,  and  Calvin- 
istic theorists,  whatever  was  true  of  their  practice,  in 
general  clung  pretty  literally  to  the  Decalogue  in 
their  code  for  kings.  Mariana's  teachings  manifest  a 
tendency  toward  that  interpretation  of  duty  which 
came  to  be  known  specifically  as  Jesuitical. 

1  Sit  animo  fixum,  nulla  re  turn  principes  turn  privates  moveri 
magis  quam  utilitate  :  neque  ulla  firma  foedera  putet,  nullas  amicitias, 
unde  nihil  speratur  commodi.  —  Lib.  Ill,  cap.  xv. 

2  Mentiri  et  fallere  numquam  principi  concedam;  sed  nisi  consilia 
tegere  didicerit,  omnibus  etiam  noxiis  benignitatem  ostentare,  multis 
ssepe  difficultatibus  implicabitur.  —  Ibid. 


76  POLITICAL  THEORIES 

6.    General  Influence  of  the  Anti-Monarchic  TJieories 

The  theories  which  have  just  been  described  in- 
jected into  political  philosophy  and  made  the  central 
topics  of  its  discussion  concepts  which  dominated 
the  field  until  well  into  the  nineteenth  century.  The 
state  of  nature,  the  contractual  origin  of  society  and 
government,  and  the  indefeasible  sovereignty  of  the 
people  became  henceforth  dogmas  that  might  or 
might  not  be  accepted,  but  could  never  be  ignored  by 
any  serious  thinker  on  politics.  That  these  concepts 
were  absolutely  novel  at  this  time,  is  of  course  not 
true.  The  literature  of  antiquity  abounds  in  allu- 
sions to  the  condition  of  man  prior  to  the  institution 
of  human  government,  and  indeed  prior  to  any  social 
'life,  and  these  allusions,  brought  prominently  before 
the  intellectual  consciousness  of  the  times  through 
the  revival  of  letters,  contributed  much  to  promote 
discussion  of  the  state  of  nature.  In  like  manner 
the  idea  of  contract  and  consent  as  the  basis  of  politi- 
cal authority  owed  its  adoption  not  only  to  the  close 
study  of  the  ancient  Jewish  system  which  the  Refor- 
mation had  brought  about,  but  also,  as  shown  particu- 
larly in  the  Vindicice  contra  Tyrannos  and  Althusius, 
by  the  adaptation  to  political  debate  of  the  doctrines 
of  the  Roman  private  law.  The  system  of  Marsiglio 
and  Cusanus,  which  had  been  adopted  freely  by 
Luther  and  the  other  great  Reformers  in  ecclesiastical 
polity,  was  as  freely  applied  by  their  successors  in 
political  questions.  In  the  spirit,  if  not  in  the  pre- 
cise words,  of  Cusanus,  it  was  laid  down  that  since  all 


REACTION  TOWARD  ARISTOCRACY  77 

men  are  by  nature  equal,  the  authority  of  any  one 
over  another  must  rest  wholly  on  agreement  and  con- 
sent ;  and,  beyond  where  Cusanus  had  gone,  the  form 
and  duration  of  this  agreement  and  consent  were  de- 
duced from  the  principles  of  commercial  contract. 
Now  for  the  first  time  explicitly  and  with  elaboration 
the  maxims  of  the  Stoic  jurists l  of  Rome  became  the  f 
chief  foundation  of  speculations  about  the  state  and 
government. 

The  religious  wars  at  the  end  of  the  sixteenth 
century  brought  fully  into  operation  in  secular  poli- 
tics the  influences  which  were  supreme  in  ecclesiasti- 
cal  politics  at  the  beginning  of  the  fifteenth  century.2 
As  Gerson  and  the  conciliar  party  sought  to  destroy 
the  autocracy  of  the  Pope,  and  substitute  the  sover- 
eignty of  the  General  Council,  so  Languet  and 
Buchanan  and  the  rest  sought  to  destroy  the  autoc- 
racy of  the  king  and  substitute  the  sovereignty  of 
the  Estates  of  the  Realm.  For  in  each  of  the  theories 
described  in  this  chapter  the  "  people,"  to  whom 
sovereignty  is  ascribed,  is  interpreted  more  or  less 
precisely  to  mean  the  assembly  of  the  magnates.  As, 
the  conciliar  party  had  consciously  sought  to  establish 
a  government  by  the  great  prelates,  so  the  anti- 
monarchic  party  sought  to  establish  a  government  by 
the  secular  nobles.  In  a  large  sense  the  theory  of 
popular  sovereignty  at  this  time  was  not  revolu- 
tionary, but  reactionary ;  it  presented  the  familiar 
phenomenon  of  a  philosophy  based  upon  a  system  of 

3  Cf.  Political  Theories  Ancient  and  Mediceval,  pp.  128,  273  et  seq. 
2  Ibid.,  pp.  266  et  seq. 


78  POLITICAL  THEORIES 

institutions  that  was  passing  away.  For  the  practi-  - 
cal  demand  of  the  assailants  of  monarchy  was  that 
the  feudal  aristocracy  should  resume  the  sway  which 
the  monarchs  were  taking  from  its  hands.  The 
"  sovereignty  of  the  people/'  as  set  forth  especially 
by  Althusius,  was  wholly  opposed  to  the  consolida- 
tion that  was  going  on  and  that  could  be  perfected 
only  by  the  national  monarchs.  Hence  the  theories 
that  we  have  been  considering  failed  of  realization  in 
the  principal  kingdoms,1  and  the  absolute  monarchy 
continued  its  work.  Only  when  a  new  content  was 
put  into  the  old  formula  of  "  popular  sovereignty  " 
was  the  dogma  properly  adaptable  to  revolutionary 
propaganda. 

In  many  details  of  their  theory  the  anti-monarchic 
writers  that  we  have  noticed  differed  from  one  an- 
other, and  the  shades  of  doctrine  on  a  variety  of 
subjects  were  manifold.  But  one  feature  stands  out 
clear  and  conspicuous  in  all  the  theories,  namely,  the 
idea  that  political  authority  is  derived  by  its  pos- 
sessor not  from  a  divine  but  from  a  human  source. 
The  construction  put  by  Luther  and  Calvin  on  the 
teachings  of  the  Scriptures  in  this  respect  is  dropped, 
and  submission  to  any  particular  ruler  as  the  repre- 
sentative of  God's  will  ceases  to  be  the  presumptive 
duty  of  a  Christian.  The  law  and  the  contract  in- 
tervene between  God  and  the  monarch,  and  the 
royal  acts  are  to  be  subjected  to  the  test  of  mere 

1  Scotland  remained  a  constitutional  kingdom  and  the  United 
Netherlands  an  aristocratic  republic,  but  France,  Spain  and  England 
were  absolute  monarchies. 


THE  PEOPLE  NOT  THE  MASSES          79 

human  reason.  On  this  ground  Protestants  unite 
with  Catholics  and  deny  to  secular  rulers  that  im- 
mediate divine  right  and  hence  that  ever  extending 
power  which  the  Reformation  had  tended  to  insure 
to  them.1  Calvinists  and  Jesuits  agree  in  at  least 
the  one  contention,  that  despotism  has  no  sanction 
from  heaven. 

But  while  this  much  of  the  anti-monarchic  doctrine 
is  clear,  there  is  vagueness  and  inconsistency  in  the  / 
treatment  of  many  points  of  theoretical  importance. 
"  The  people/'  which  is  at  the  basis  of  so  much  of  \ 
the  disputation,  is  a  somewhat  elusive  concept.     In 
one  place  the  term  signifies  the  classes  which  con- 
stitute  the  Estates  of  the    Realm,  in    another   the 
Estates  as  organized  in  their  assembly,  in  another 
something  which  the  Estates  represent;    but   in  no 
case  will  it  be  conceded  that    the  population  as  a 
whole,  conceived  as  a  multitude  of  individuals,  is  to 
be  recognized  as  an  embodiment  of  political  power. 
Again,  in  the  idea  of  the  contract,  the  parties  are  in\ 
every  case  assumed  to  be  the  people  and  the  king;  \ 
but  only  Althusius  gives  any  adequate  idea  as  to  the  j 
process  by  which  a  people  comes  to  exist.2     The  con-  / 
tract  dealt  with  by  all  the  rest  is,  in  short,  what  has/ 
come  to  be  called  the  civil  or  governmental  contract/ 
as  distinct  from  the  social  contract.     It  was  hardly 
strange  that  in  the  stress  of  controversy  something 


1  Supra,  p.  36. 

2  Mariana  starts  from  the  isolated  man,  but  the  steps  by  which  a 
number  of  these  become  a  people,  capable  of  expressing  a  corporate 
will,  are  not  indicated. 


80  POLITICAL  THEORIES 

less  than  exact  theoretical  analysis  should  have  char- 
acterized the  thinking  of  the  earnest  men  who  were 
in  the  heart  of  the  fray.  They  sought  and  in  a 
measure  achieved  certain  concrete  ends,  but  it  was 
left  for  a  series  of  thinkers  who  could  bring  more  of 
philosophy  and  less  of  passion  to  the  task,  to  formu- 
late with  precision  the  definitions  and  the  dogmas  / 
which  were  of  the  highest  significance  in  the  political 
theory  of  the  times.  The  latter  half  of  the  sixteenth 
century  numbered  among  its  great  men  a  body  of 
profound  juristic  intellects,  and  it  is  to  one  of  these, 
whose  legal  learning  was  supplemented  by  extraor- 
dinary historical  and  philosophical  insight,  that  we 
must  now  turn  our  attention. 

SELECT  REFERENCES 

ARMSTRONG,  "  Political  Theory  of'  the  Huguenots,"  in 
English  Historical  Review,  Vol.  IV  (1889).  BAIRD,  History 
of  the  Huguenots.  BAUDRILLART,  Jean  Bodin  et  son  temps, 
pp.  1-110.  BLOK,  History  of  the  People  of  the  Netherlands, 
trans,  by  Putnam,  III,  pp.  1-39,  357-376.  BLUNTSCHLI, 
Geschichte),^  ^ .  76-88.  BUCHANAN,  De  lure  Regni  apud  Scotos. 
DURUY,  History  of  Modern  Times,  trans,  by  Grosvenor, 
pp.  189-253.  FRANCK,  Refonnateurs  et  Publicistes,  XVIIme 
siecle,  pp.  52-85  (Mariana).  GIERKE,  Johannes  Althusius, 
cap.  i  and  ii.  GIESELER,  Vol.  IV,  pp.  293-321.  GOOCH,  Eng- 
lish Democratic  Ideas  in  the  Seventeenth  Century,  Introduc- 
tion. HALLAM,  Literature  of  Europe,  Vol.  II,  chap.  iv. 
HAUSSER,  Period  of  the  Reformation,  chaps,  xxii-xxix  and  xlii. 
HOTMAN,  Franco-Gallia,  trans.  Janet,  Vol.  II,  pp.  30-50. 
MARIANA,  De  Rege  (Mainz,  1605).  MOTLEY,  Rise  of  the 
Dutch  Republic,  Part  II,  chaps,  i  and  ii.  TREUMANN,  Die 
Monarchomachen.  Vindicice  contra  Tyrannos,  Hanover,  1595. 


/*-* 

CHAPTER  III 

JEAN   BODIN 

1.   Method  and  First  Principles  of  his  Politics 

IT  is  no  less  interesting  than  surprising  that  out 
of  the  very  storm  centre  of  controversy,  passion ,  and 
violence  during  the  religious  wars  should  have 
appeared  a  system  of  political  theory  as  serenely 
philosophical  in  spirit,  as  precise  in  analysis,  and  as 
exact  in  logic  as  if  it  had  been  produced  in  the  emo- 
tionless tents  of  Plato's  philosopher-guardians.  The 
work  of  the  Frenchman,  Jean  Bodin,  fairly  marks  an 
epoch  in  the  history  of  scientific  politics.  It  is  the 
product  of  a  mind  of  preeminently  the  scholarly 
type,  conservative  in  quality  yet  glowing  with  the 
inspiration  of  the  Renaissance,  and  disciplined  by 
close  contact  with  the  practical  statecraft  <_  u,  power- 
ful monarchy.  For  Bodin  was  no  closet  philosopher. 
He  was  trained  in  the  law  and  spent  most  of  his  life 
in  the  public  service,  being  closely  attached  to  the 
court  of  Henry  III.  Both  by  interest  and  by  natural 
disposition  he  was  opposed  to  the  disintegrating  ten- 
dencies of  the  religious  factions,  and  he  supported  the 
monarch  as  against  Catholic  and  Huguenot,  Guise 
and  Bourbon.1  For  this  attitude  in  practical  politics 

1  For  a  short  time,  under  exceptional  circumstances,  he  joined  the 
League.  See  Baudrillart,  J.  Bodin  et  son  temps,  pp.  131  et  seq. 

VOL.  II.  —  G  81 


82  POLITICAL   THEORIES 

he  was  the  better  equipped  in  that  he  conspicuously 
lacked  all  religious  prejudice.  Indeed,  though  his 
works  contain  ample  evidence  of  a  formal  veneration 
for  God,  it  is  not  known  to  this  day  precisely  what 
his  creed  was.1  '  His  affiliations  in  the  tangled  politics 
of  the  time  were  entirely  with  that  group  of  distin- 
guished thinkers,  including  L'Hopital,  Pasquier  and 
De  Thou,  who  were  known  as  Les  Politiques, 
and  who  saw  no  hope  of  a  restoration  of  peace  and 
order  save  through  the  suppression  of  all  the  parties 
and  the  assurance  of  unquestioned  supremacy  to  the 
monarch. 

In  the  exigencies  of  French  politics,  then,  we  must 
recognize  one  source  of  Bodin's  political  theory.  His 
/.  philosophy  is  a  justification  of  absolute  monarchy,  and 
to  that  extent  it  is  in  the  same  class  of  controversial 
literature  as  the  works  of  the  monarchomachs  already 
examined.  But  the  most  superficial  consideration  of 
his  writings  reveals  a  wide  gap  between  him  and  most 
of  his  adversaries,  in  spirit  and  in  method.  In  spirit, 
the  difference  is  that  between  the  philosopher,  who 
finds  his  conclusion  shaping  itself  automatically  out 
of  a  wide  range  of  observed  facts,  and  the  advocate, 
who  laboriously  marshals  his  array  of  facts  to  sustain 
the  conclusion  already  assumed ;  in  method,  the  dif- 
ference is  between  the  uncritical  use  of  history  and 

1  The  inconveniences  of  the  philosophical  attitude  in  his  day  are 
illustrated  by  the  fact  that  Bodin  was  assailed  at  different  times  as  a 
Catholic,  a  Calvinist,  a  Jew,  a  Mohammedan  and  an  atheist.  His 
Heptaplomeres  is  a  remarkable  work,  in  the  form  of  a  colloquy  be- 
tween representatives  of  seven  religious  and  philosophical  creeds, 
with  a  strongly  theistic  tendency.  Cf.  Baudrillart,  p.  190. 


BODIN'S  PHILOSOPHY  OF  HISTORY  83 

theological  authority,  and  the  critical  use  of  history, 
guided  by  the  broadest  erudition  and  exceptional 
philosophic  insight,  with  a  pronounced  scepticism  as 
to  all  human  authority.1  Bodin  is  indeed  the  first 
writer  to  set  forth  a  philosophy  of  history  in  the 
modern  sense.  He  was  the  first,  that  is,  to  make  an 
exhaustive  and  scientific  review  of  the  facts  of  human 
development  the  basis  of  broad  generalizations  as  to 
the  principles  and  purpose  underlying  that  develop- 
ment. His  comprehensive  work,  A  Method  for  the 
Easy  Understanding  of  History?  embodied  radical 
innovations  in  respect  to  many  cherished  conceptions 
of  social  and  political  belief  —  innovations  based  upon 
a  new  attitude  toward  the  interpretation  of  history. 
The  work  is  a  broad  critical  survey  of  the  histori- 
ography of  all  ages,  guided  by  a  conception  of  the 
character  and  importance  of  history  that  is  at  many 
points  quite  in  harmony  with  the  best  thought  of 
modern  times.  Several  of  the  most  striking  features 
of  Bodin's  later  work  on  The  State  were  first  wrought 
into  form  out  of  the  raw  material  of  history  in 
the  Method.  Here  are  to  be  found  the  basis  of  his 
theory  as  to  the  influence  of  climate  and  topography 
on  political  and  social  institutions,3  his  doctrine  as  ^ 
to  the  forms  and  transmutations  of  states,4  and  his 
striking  assertion  of  the  theory  of  human  progress,  as 

1  Quserendum  putavimus,  non  quid  quisque  dixerit  aut  senserit, 
quantseque  auctoritatis  fuerit,  sed   quid  rationi  convenienter  posset 
et  sententiae  suse  dicere.  —  De  Repullica,  Prsef  atio. 

2  Methodus  ad  facilem  Historiarum  Cognitionem,  published  first  in 
1566.    I  have  used  the  Paris  edition  of  1583. 

3  Methodus,  cap.  v.  4  Ibid.,  cap.  vL 


POLITICAL  THEORIES 

opposed  to  the  ancient  dogma  of  deterioration  from  a 
golden  age.1 

Of  scarcely  less  importance  than  his  historical 
spirit,  in  its  influence  on  his  political  theory,  was 
Bodin's  juristic  temperament  and  training.  For  the 
career  of  a  practitioner  at  the  bar  he  seems  to  have 
had  no  fitness  whatever ; 2  but  he  brought  to  the 
study  of  the  law  that  broad  philosophical  spirit  which 
makes  jurisprudence  most  fruitful  in  political  science. 
In  the  dedicatory  preface  of  his  Method  he  severely 
criticises  the  current  method  of  legal  study.  This 
consists,  he  says,  in  a  dull  and  profitless  reading  and 
exegesis  of  the  long  obsolete  laws  of  a  single  people, 
the  Romans,  in  a  compilation  made  under  such  circum- 
stances as  to  embody  not  so  much  the  actual  system 
of  the  real  Romans  as  the  fancies  of  some  insignifi- 
cant Greeks  (Grrceculorum  figmentd).  The  serious  and 
useful  study  of  law  must  include,  he  holds,  the  systems 
of  all  people,  especially  those  that  have  shown  most 
progress  and  enlightenment.  It  must  rest  upon  a 
careful  and  exhaustive  study  of  social  and  political 
institutions  in  their  development.  In  short,  Bodin's 
conception  of  legal  science  is  very  close  to  that  which 
is  now  designated  as  historical  and  comparative 
jurisprudence.  Law  and  politics  are,  in  his  mind, 

1  Methodus,  cap.  vii :  "  Confutatio  eorum  qui  Quatuor  Monarchias 
Aureaque   Secula  statuunt."      Bodin  glows  with   pride  in  his  own 
age  as  compared  with  antiquity.     Firearms,  for  example,  he  declares 
have  made  the  "  catapulta  et  antiqua  belli  tormenta  "  ridiculous ;  and 
printing  alone  is  easily  worth  all  the  inventions  of  the  ancients.     Nor 
is  progress  to  cease :  "  Habet  natura  scientiarum  thesauros  innumer- 
abiles,  qui  nullis  setatibus  exhauriri  possuut." 

2  Baudrillart,  p.  115. 


BODIN  ON  THE  LAW  OF  NATURE         85 

closely  related  sciences,  both  to  be  approached  only 
through  history. 

It  is  entirely  in  harmony  with  the  historical  and 
juristic  bent  of  his  thought  that  Bodin  accepts  with- 
out question  or  discussion  the  idea  of  a  law  of  nature 
that  conditions  all  human  relations.  "  Nature,"  with 
him,  signifies  an  aggregate  of  forces  lying  between 
the  divine  and  the  human,  and  tends  to  take  a 
materialistic  form;1  but  in  connection  with  "law" 
and  "right"  the  ancient  ethical  sense  persists,  and 
the  law  of  nature  is  merely  the  rules  that  distinguish  " 
right  from  wrong.  This  moral  law  is  assumed 
throughout  to  determine  from  a  higher  plane  all  v 
political  theory.  Bodin  thus  avoids  the  moral  in- 
differentism  of  Machiavelli.  /Nor  will  he  even  identify 
natural  law  with  the  law  common  to  all  nations 
(ius  gentium),  —  an  identification  that  had  from 
time  to  time  been  made  since  the  days  of  imperial 
Rome :  thus  he  denies  that  slavery  can  be  considered 
natural  merely  because  it  has  had  universal  preva- 
lence^ and,  with  all  his  absolutistic  propensity,  he 
rejects  the  doctrine  that  the  sovereign  may  derogate 
from  the  law  of  nature,  holding  that  what  the 
defenders  of  the  doctrine  really  have  in  mind  is  the 
sovereign's  right  to  derogate  from  the  law  of  nations 
(ius  gentium)  ? 

The  great  work  in  which  Bodin  set  forth  his  political 
science  was  entitled  Six  Books  concerning  the  State, 

1  See  Methodus,  cap.  i,  into.    History  he  classifies  as  of  three  kinds, 
human,  natural  and  divine. 

2  De  Republica^  Lib.  Ill,  cap.  iv. 


86  POLITICAL  THEORIES 

and  was  published  first  in  French,  in  1576,  and  later, 
with  considerable  revision,  in  Latin.1  In  form  the 
treatise  is  admirably  systematic,  suggesting  in  this 
respect  the  scholastics.  In  method  of  presentation 
the  historical  element  appears  as  subsidiary  and  cor- 
roborative, and  the  salient  ideas  are  embodied  first  in 
clearly  formulated  definitions.  The  definition  with 
which  the  work  begins  suggests  the  characteristic 
features  of  his  whole  philosophy  :  "  A  state  is  an 
aggregation  of  families  and  their  common  posses- 
sions, ruled  by  a  sovereign  power  and  by  reason."  2 
In  this  is  implied,  what  the  later  chapters  elaborate, 
that  the  basis  of  the  state,  both  in  historical  and  in 
logical  development,  is  the  family ;  that  a  distinction 
must  be  drawn  between  interests  that  are  common 
and  those  that  are  not ;  that  a  supreme  power  is 
essential  to  the  idea  of  the  state ;  and  that  govern- 
ment is  conditioned  by  a  moral  end.  By  rational 
rule  he  means  rule  in  accordance  with  that  natural 
law  which  embodies  the  dictates  of  justice.  The 
sway  of  reason,  rather  than  appetite,  he  regards  as 
indispensable  to  distinguish  between  a  state  and  a 
pirate  band.  The  end  to  be  sought  in  all  human 
actions  is  happiness  ;  but  the  happiness  of  a  state, 
like  that  of  an  individual,  is  only  to  be  conceived 
of  in  accordance  with  the  requirements  of  moral, 
rational  and  intellectual  satisfactions. 


1  De  RepuUiea  Libri  Sex,  1586.     I  have  used  the  Frankfort  edition 
of  1641.     There  is  an  English  translation  by  Richard  Knolles,  1606. 

2  Respublica  est  familiarum  rerumque  inter  ipsas  communium, 
summa  potestate  ac  ratione  moderata  multitude.  —  Lib.  I,  cap.  i. 


JEAN  BODIN  87 

2.    Origin  and  Social  Basis  of  the  State 

In  his  view  of  the  origin  of  the  state,  Bodin  exem- 
plifies the  transitional  stage  between  the  ancient 
Aristotelian  idea  and  the  social-contract  idea  that 
was  soon  to  dominate  all  speculation.  The  essential 
fact  in  every  association  of  men  consists,  he  holds,  in 
the  subjection  of  the  members  to  the  commands  of 
one  another;  hence  every  association  involves  an 
infringement  of  the  liberty  which  nature  has  given 
to  the  individual.1  This  natural  liberty  he  defines 
as  freedom  from  the  authority  (imperium)  of  any  one 
save  God  immortal.  But  though  he  from  time  to 
time  suggests,  as  a  rational  starting-point  for  theory, 
a  condition  in  which  such  liberty  prevails  among 
men,  he  nowhere  fully  develops  this  conception  of  a 
pre-social  state.  His  preoccupation  is  with  authority 
rather  than  with  liberty ;  and,  therefore,  in  construct- 
ing his  view  of  the  historical  origin  of  political 
associations,  he  neglects  entirely  the  individualistic 
conception  of  liberty,  and  starts  from  the  family. 
His  idea  of  the  family  is  that  of  the  Roman  law  and 
of  the  Hebrew  patriarchs  —  a  group  of  individuals 
under  the  supreme  power  of  the  paterfamilias.  The 
"  natural  liberty "  which  he  defines  as  pertaining  to 
every  individual  is  entirely  incompatible  with  the 
subjection  of  wife,  children  and  slaves  to  the  head 
of  the  family.  In  short,  the  individualism  which  is 

1  Libertas  ilia  quam  nullis  astrictam  legibus  unicuique  natura 
dedit.  —  De  Republica,  Lib.  I,  cap.  iii.  Plena  ilia  et  a  natura  cinque 
tributa  libertas  vivendi  ut  vellet.  —  Ibid.,  Lib.  I,  cap.  vi. 


88  POLITICAL  THEORIES 

expressed  in  his  idea  of  liberty  has  no  broad  applica- 
tion, but,  so  far  as  it  affects  Bodin's  philosophy  at 
all,  concerns  only  the  patres  familias.  They,  but  only 
they,  are  free  and  equal  under  natural  law. 

This  tentative  and  restricted  adoption  of  the  ideas 
of  natural  liberty  and  equality,  as  well  as  a  like  con- 
servative handling  of  the  question  whether  force  or 
sociability  was  responsible  for  the  beginnings  of  politi- 
cal life,  is  clearly  to  be  seen  in  Bodin's  account  of  the 
origin  of  the  state.1  Substantially,  though  he  does  not 
so  phrase  it,  he  bases/ the  development  of  society  on 
the  social  instinct  of /man,  and  the  development  of 
the  state  on  force.  /Mankind  started  from  a  single 
family,  out  of  which,  through  natural  causes,  sprang 
many  families,  who  established  homes  for  themselves 
at  places  well  adapted  for  protection  from  the  vio- 
lence of  nature.  For  common  advantage  a  number 
of  families  would  group  themselves  together  about 
an  eligible  site  —  by  a  spring  for  water-supply,  or 
on  a  hill  for  protection  —  and  different  groups  would 
fight  with  one  another  for  the  more  desirable  spots. 
Primitive  men  were  a  violent,  plundering  crew  —  as 
is  proved,  he  thinks,  by  the  recorded  fact  that  brig- 
andage was  a  normal  occupation  among  the  early 
Greeks 2  —  and  life  was  rendered  tolerable  only  by  the 
divinely  implanted  social  instinct.  Through  this  the 
mutual  affection  which  primarily  united  only  mem- 
bers of  the  same  family  was  in  some  degree  extended 
to  unite  members  of  different  families.  Friendship 

1  De  Republica,  Lib.  I,  cap.  vi,  and  Lib.  Ill,  cap.  vii. 

2  Cf.  Political  Theories,  Ancient  and  Mediceval,  p.  60. 


SOCIAL  AND  POLITICAL  ORIGINS  89 

(amidtia)  was  the  active  principle  through  which 
"  civil  "  associations  (societates  ac  sodalitia)  sprang  up, 
crossing  the  boundaries  of  the  family,  which  was  the 
"natural"  association.  These  civil  associations,  for 
purposes  of  trade,  religious  worship  or  other  activity, 
were  the  bonds  of  human  society  before  any  .political 
bonds  were  established,  and  they  have  continued 
through  subsequent  history  to  perform  functions  in- 
dispensable to  social  life,  though  distinct  from  those 
of  government.  Such  is  the  theory  by  which  Bodin 
explained  the  fraternities  and  clubs  which  figure 
vaguely  but  certainly  in  the  history  of  the  ancient 
city-states,  and  the  guilds,  corporations  and  com- 
munes which  were  so  conspicuous  in  his  own  time. 
While  human  society  thus  arose  through  the  opera- 
tion of  the  social  instinct,  the  state,  on  the  other 
hand,  took  its  origin  in  force.  In  the  wars  which 
arose  among  the  primitive  families  and  groups  of 
families  the  vanquished  became  the  slaves  of  the 
victors,  and  at  the  same  time  the  victors  themselves 
were  subjected  to  the  authority  of  the  chiefs  whom 
they  had  chosen  to  lead  them.  Thus  it  was  that 
natural  liberty  disappeared,  and  thus  it  was  that 
slavery  and  political  subjection  came  into  existence 
together.  Slave  and  subject,' citizen  and  alien,  prince 
and  tyrant  had  a  common  origin.1  The  view  of  Aris- 
totle and  others,  following  Herodotus,  that  the  first 
monarchs  were  voluntarily  chosen  by  the  peoples  for 
their  supereminent  virtues,  is,  Bodin  holds,  wrong; 

1  Inde  prima  servitutis  ac  subditorum,  inde  civiura  et  peregrino- 
rum,  principis  ac  tyranni  origo.  —  De  Republic^  p.  72. 


90  POLITICAL  THEOKIES 

history  shows  that  they  were  military  leaders  who 
imposed  their  sway  upon  the  peoples  by  force.  The 
erroneous  doctrine  is  merely  a  part  of  that  broader 
delusion  which  is  embodied  in  the  myth  of  a  prime- 
val golden  age. 

In  harmony  with  this  view  of  its  origin,  the^slate, 
in  Bodin's  theory,  is  the  ultimate  form  of  association, 
(ccetus),  holding  together  by  a  supreme  power  a  mass 
of  lesser  associations  and  individuals.  The  most 
elementary  of  these  lesser  forms  is  the  family,  held 
together  by  a  natural  bond — a  natural  association; 
then  come  in  order  the  college  (collegium),  the  corpora- 
tion (corpus)  and  the  commune  (universitas),  which  he 
calls  civil  associations;  and  finally  the  state  or  common- 
wealth (respublica),  which  is  the  political  association. 
All  the  ancient  discussion  as  to  the  numerical  limits  of 
a  state  is  peremptorily  set  aside  as  irrelevant.  Where 
a  sovereign  power  exists,  there  is  a  state,  no  matter 
whether  the  families  subject  to  the  power  be  as 
many  as  in  imperial  Rome  or  as  few  as  in  petty 
Ragusa.1  [The  essence  of  the  state  is  in  the  power 
that  binds,  not  in  the  number  bpuncLj  Thus  Bodin 
logically  removes  from  his  path  all  the  stumbling- 
blocks  that  the  city-state  tradition  would  leave  to 
vex  him. 

The  detailed  analysis  and  discussion  of  the  non- 
political  forms  of  association  constitute  a  most  im- 
portant part  of  Bodin's  work ;  but  only  a  few  salient 
features  can  be  noticed  here.  He  views  the  family 
from  the  standpoint  of  the  Roman  law,  and  his  con- 

1  De  Republica,  I,  ii. 


•«*•*.    - 

SLAVERY  NOT  NATURAL  91 

elusions  are  therefore  less  modern  in  spirit  than  other 
parts  of  his  work.  Thus  the  paternal  authority 
(jpatria  potestas) l  assumes  a  very  extreme  form, 
though  one  corollary  of  this,  practical  freedom  of 
divorce,  is  rather  more  suggestive  of  the  nineteenth 
than  of  the  sixteenth  century.  As  to  the  institution 
of  domestic  slavery,2  Bodin  puts  himself  fully  on 
modern  ground.  He  denies  that  it  is  either  natural 
or  useful,  overthrows  seriatim  the  arguments  in 
support  of  the  institution  as  advanced  by  Aristotle 
and  later  writers,3  and  laments  the  recent  reintro- 
duction  of  the  system  into  Europe  after  it  had  been 
for  three  centuries  extinct  there.  This  part  of 
Bodin's  treatise  is  unquestionably  an  innovation  in 
social  philosophy.  He  himself  claims  like  distinction 
for  his  discussion  of  "  civil  associations  "  —  the  college, 
the  corporation  and  the  commune.4  His  starting- 
point  here  is  the  Roman  law  of  partnerships  and 
corporations,  and  his  exposition  is  clearly  shaped 
by  the  purpose  of  cutting  away  the  supports  which 
religious  and  political  faction  had  found  in  the  as- 
sumed rights  and  privileges  of  mediaeval  corporate 
bodies.  While  carefully  defining  and  distinguishing 

1  De  Republica^  I,  iii  and  iv. 

2  Ibid.,  I,  v. 

8  The  claim  that  it  is  "  natural "  because  universally  prevalent  is 
met  by  the  observation  that  human  sacrifices  have  been  almost  as 
widespread  a  custom;  and  the  argument  that  slavery  is  expedient 
in  order  to  make  the  idle,  shiftless  and  vicious  socially  useful,  is  met 
by  the  startlingly  modern  suggestion  that  the  same  end  could  be  better 
attained  by  the  establishment  of  manual-training  schools  (collegia 
publica  puerorum  ubi  artes  et  opijicia  condiscanf) .  —  P.  70. 

'*  Lib.  Ill,  cap.  7. 


92  POLITICAL  THEORIES 

the  three  types,1  and  ascribing  to  them  a  high 
degree  of  utility  —  indeed  absolute  necessity  —  in 
social  life,  he  nevertheless  iterates  and  reiterates  the 
doctrine  that  they  have  in  them  no  innate  vital 
principle,  but  are  purely  creatures  of  the  sovereign's 
will.2  From  this  point  of  view  not  only  the  guilds, 
trading  companies  and  other  associations  for  private 
advantage,  but  also  the  colleges  of  magistrates,  the 
provincial  estates,  the  chartered  communes  and  other 
public  bodies,  for  which  the  Huguenots  and  the 
League  had  claimed  indefeasible  rights,  were  wholly 
subject  to  the  power  of  the  French  monarch.  All 
mankind,  he  thinks,  may  be  regarded  as  a  series  of 
associations,  from  the  family  at  the  bottom  to  the 
state  at  the  top ;  but  the  last  is  differentiated  from 
all  the  rest  by  the  decisive  fact  that  it  alone  pos- 
sesses sovereignty  —  the  power  which  holds  all  the 
others  in  their  places. 

Bodin's  treatment  of  associations  completed  the 
long  process  through  which  the  Koman  private  law 
of  corporations  became  a  determining  factor  in  public 
law  and  political  theory.3  He  regards  the  state 
as  substantially  an  aggregation  of  groups,  though  he 

1  A  college  is  a  lawful  association  (consociatio)  of  three  or  more 
persons  of  the   same   calling    (conditio)  ;   a  corporation  is  a  union 
(coniunctio)  of  a  number  of  colleges;   a  commune  is  the  aggrega- 
tion of  all  the  families,  colleges  and  corporations  of  the  same  town 
(pppidum),  united  by  a  community  of  rights  (iuris  communione). — 
P.  511. 

2  "  Sunt  coetus  in  republica  iure  sociati,  id  est,  summi  principis 
beneficio  et  concessu,  sine  quibus  corporum  et  collegiorum  ius  ac- 
nomen  amittunt." 

8  For  early  stages  in  this  process  see  Political  Theories,  Ancient  and 
Mediceval,  p.  276. 


PATEE  FAMILIAS  AND  CITIZEN  93 

continues,  under  Aristotelian  influence,  to  treat  of 
individuals  also  as  elements  in  the  commonwealth. 
It  was  from  Bodin  that  Althusius,  as  we  have  already 
seen,1  took  his  doctrine  of  groups  and  carried  it  to 
its  extreme,  submerging  the  individual  entirely  in  the 
association,  and  ascribing  to  the  latter,  in  all  its 
forms,  so  complete  an  endowment  of  natural  rights 
as  to  leave  no  room  for  any  political  entity  more 
coherent  than  a  confederation. 

3.    Citizenship 

The  place  reserved  for  the  treatment  of  the  indi- 
vidual in  relation  to  the  state  is  revealed  in  his  dis- 
cussion of  the  nature  of  citizenship.2  Not  that  the  v 
citizen  is  the  primary  element  in  the  political  body. 
This  primary  element  is  the  family.  The  family 
may  exist  without  the  state,  but  the  converse  is  not 
true.  The  citizen,  then,  is  but  the  head  of  the  family 
—  the  pater  familias —  in  a  different  relationship. 

When  the  paterfamilias  goes  forth  from  the  home  in  which 
he  has  domestic  authority  (imperiu^)  and  joins  with  other 
heads  of  families  in  carrying  on  affairs,  then  assuredly  he  puts 
aside  the  name  of  pater  familias  and  master  (dominus)  and 
appears  as  an  associate  (sodas)  and  a  citizen. 

But  while:CTeTation  to  his  fellow  patres  familias  and 
to  public  affairs  gives  character  to  the  citizen,  no 
accession  of  political  rights  is  essential  to  the  con- 
ception. •  The  confused  and  contradictory  criteria  of 
citizenship  in  Aristotle's  Politics  are  rejected,  espe- 

1  Supra,  p.  63. 

2  This  is  the  subject  of  Bk.  I,  chap.  vi. 


94  POLITICAL  THEORIES 

cially  the  assertion  that  participation  in  political 
functions  is  a  prime  characteristic  of  the  citizen.  A 
citizen,  says  Bodin,  is  "  a  free  man  who  is  subject  to 
the  sovereign  power  of  another."  l  "  Free  "  excludes 
slaves,  but  not  women  or  those  under  paternal  au- 
thority. Excepting  the  servile  class,  then,  the  popu- 
lation of  a  state  falls  into  two  primary  divisions, 
sovereign  and  citizens.  Among  the  individuals  of 
the  latter  class  there  may  be,  with  respect  to  one 
another,  an  infinite  variety  of  rights,  privileges  and 
immunities ;  but  with  respect  to  the  sovereign,  all 
stand  in  precisely  the  same  relation,  namely,  sub- 
jection. 

Equality  among  citizens,  whether  in  dignity,  rights 2 
or  condition,  is  regarded  by  Bodin  as  an  absurd  idea, 
and  he  scoffs  at  those  who  strive  for  such  an  end,  "  so 
that  there  shall  be  in  the  state  no  first,  no  last  and  no 
middle,  but  all  shall  be  mixed  up  regardless  of  age, 
sex  or  status."  3  Nobility  is  an  important  social  and 
political  institution ;  women  have  no  fitness  for  affairs 
outside  of  the  household ;  and  it  is  rational  to  take 
account  of  a  man's  occupation  in  determining  his 
position  in  society  and  the  state.4 

1  Liber  homo  qui  summae  alterius  potestatis  obligatur.  —  I,  vi. 

2  He  proves  from  history  "  nusquam  gentium  ullam  esse  aut  antea 
fuisse  rempublicam,  quantumvis  popularem,  seu  veram  sen  hominum 
opinione  fictam,  in  qua  cives  omnes  omnino  iure  civitatis  exsequaren- 
tur."  —  I,  vi,  end. 

8  De  Republica,  Lib.  Ill,  cap.  viii. 

4  Wholesale  merchants  are  qualified  for  citizenship,  but  retailers 
and  artisans,  Bodin  is  inclined  to  think,  are  not.  His  pronounced 
views  as  to  the  unfitness  of  women  for  public  life  are  said  to  have 
led  Queen  Elizabeth,  when  he  was  with  an  embassy  at  the  English 
court,  to  dub  him  punningly,  "  M.  Badin." 


CITIZENS  AND   SOVEREIGN  95 

It  is  not  necessary  to  follow  Bodin's  exhaustive 
examination  of  the  law  of  antiquity  and  of  later 
centuries  to  catch  the  drift  of  his  purpose  in  this 
doctrine.  He  is  very  ready  to  concede  that  the  peer 
may  have  different  rights  and  privileges  from  the 
townsman  (bourgeois),  the  townsman  from  the  rustic 
and  from  other  townsmen ;  but  he  feels  that  the 
aggregation  of  social  classes  which  feudalism  has 
developed  can  attain  the  unity  and  order  of  true  state 
life  only  through  a  power  dominating  and  regulating 
all  alike.  Subjection  to  such  a  sovereign  power  is 
the  sole  test  of  citizenship,  and  the  recognition  of  a 
common  sovereign  is  the  sole  criterion  of  a  state. 

On  this  basis  the  semi-feudal,  semi-national  mon- 
archy of  his  time  can  logically  rest  as  a  true  state. 
The  great  variety  of  customs,  institutions,  even  lan- 
guages, that  characterizes  such  a  monarchy  is  no  bar 
to  the  recognition  of  statehood.  Yet  Bodin  is  entirely 
conscious  of  the  importance  of  social  homogeneity  in 
determining  political  relations,  even  if  he  cannot  con- 
cede that  such  homogeneity  is  good  ground  for  inde- 
pendent political  life.  Ugnce  he  distinguishes  two 
species  of  state  —  the  commonwealth  (respiiblicd)  and 
the  city  (civitas),  by  attributes  similar  to  those  which 
in  later  thought  have  come  to  differentiate  "  empire  " 
from  "  nation."  The  commonwealth  (respublicd)  con- 
sists of  citizens  subject  to  the  same  sovereign  power 

even  though  they  differ  from  one  another  in  manners,  laws, 
institutions  and  race  (infinita  gentium  varietate).  But  if  all 
the  citizens  have  the  same  laws,  there  is  not  only  a  single  com- 
monwealth, but  also  a  single  city  (civitas),  even  though  the 


96  POLITICAL  THEORIES 

citizens  live  scattered  about  in  many  villages,  towns  and  urban 
communities.1 

Throughout  the  chapter  it  is  possible  to  discern  in 
Bodin's  thought  the  influence  of  Greek,  Eoman  and 
mediaeval  conceptions.  The  Hellenic  TTO'XIS  and  the 
Koman  urbs  and  municipium  included  villages  (vici) ; 
the  feudal  state,  after  the  rise  of  the  towns,  included 
many  urbes  ;  and  Bodin's  respullica  includes  all  these 
earlier  forms. 

4.    The  Theory  of  Sovereignty 

In  the  eighth  chapter  of  Book  I  of  the  Republic 
Bodiii  takes  up  the  formal  discussion  of  sovereignty.2 
The  idea  is  embodied,  as  we  have  already  seen,  in  his 
definition  of  state.  He  defines  the  conception  thus  : 
"  Sovereignty  is  supreme  power  over  citizens  and 
subjects,  unrestrained  by  the  laws." 3  Considering 
that  such  a  definition  is  absolutely  essential  to  the 
idea  of  the  state,  Bod  in  assumes  an  air  of  pardonable 
pride  in  declaring  that  neither  philosopher  nor  jurist 
has  ever  before  propounded  one. 

In  the  development  of  his  definition,  it  is  laid 
down  that  authority  which  is  truly  sovereign  must 

1  Lib.  I,  cap.  vi  (p.  75).    And  again  (p.  76)  :  " .  .  .  civitas  plurium 
vicorum  ac  urbiurn  cives  iisdem  legibus  ac  moribus  complexa  mode- 
ratur.      Rempublicam  vero  ex  pluribus  civitatibus  ac  provinciis,  quae 
variis  legibus   ac  moribus  utuntur,  constitui  videmus,  quas   tamen 
summa  quadam  imperii  potestate  coercentur." 

2  For  some  phases  of   the  earlier  history  of  this  conception,  see 
Political  Theories,  A  ncient  and  Mediceval,  pp.  65  et  seq.,  239,  248  et  seq., 
267,  273;  also  Gierke,  Johannes  Althusius,  pp.  123  et  seq. 

8 "  Maiestas  est  summa  in  cives  ac  subditos  legibusque  soluta 
potestas." 


THE  NATURE   OF  SOVEREIGNTY  97 

be  not  only  supreme,  but  perpetual  —  that  is,  without 
limit  of  time.  Thus  the  Koman  dictator,  with  all  his 
power,  fell  short  of  sovereignty  through  the  limita- 
tion of  his  term.  Similarly  any  official  intrusted  with 
supreme  authority  for  the  accomplishment  of  some 
specific  purpose  is  less  than  sovereign.  Regents,  vice- 
roys and  other  such  dignitaries  fall  into  a  like  category. 
Yet  Bodin  takes  care  not  to  carry  the  idea  of  "  per- 
petual "  too  far.  He  is  not  ready  to  exclude  the 
conception  of  monarch  from  the  scientific  treatment 
of  politics.  "  But  if,"  he  says,  "  we  construe  per- 
petual power  as  that  which  will  never  have  an  end, 
sovereignty  will  have  no  existence  save  in  the  pop- 
ular and  the  aristocratic  state;  since  the  people 
[only]  is  immortal,  unless,  indeed,  it  be  utterly  ex- 
terminated." The  life  tenure  of  supreme  power, 
therefore,  may  constitute  sovereignty  in  an  individual. 
Sovereignty  in  this  sense  may  be  bestowed  by  a 
people  on  an  individual,  or  be  transferred  from  one 
individual  to  another,  and  in  either  case  the  recipient 
is  truly  sovereign  provided  the  transfer  is  free  from 
condition. 

The  nature  of  the  supremacy  that  is  implied  in 
maiestas  is  set  forth  by  Bodin  with  an  abundance 
of  analysis  and  illustration.  The  essence  of  the  idea 
is  embodied  in  the  words  "legibus  soluta"  Sover- 
eignty has  its  chief  and  characteristic  function  in  the 
making  of  laws.1  From  the  binding  force  of  these 
laws,  tta  sovereign  is  by  the  nature  of  the  case  free. 

1  "  Summuin  ius  maiestatis  in  eo  potissimum  versari,  cum  non 
modo  singulis  sed  etiam  universis  leges  dantur  iisque  imperatur." 


98  POLITICAL  THEORIES 

But  not  from  all  laws.  "  If  we  should  define  sover- 
eignty as  a  power  legibus  omnibus  soluta,  no  prince 
could  be  found  to  have  sovereign  rights ;  for  all  are 
bound  by  divine  law  and  the  law  of  nature  and  also 
by  that  common  law  of  nations  which  embodies 
principles  distinct  from  these."  *  This  standpoint  is 
consistently  maintained  by  Bodin.  His  legislator  is 
the  legislator  of  the  jurist,  not  of  the  theologian  or 
of  the  moral  philosopher.  He  assumes,  but  nowhere 
closely  defines,  the  leges  divince,  naturce  et  gentium. 
Those  are  conceptions  beyond  his  precise  field, 
always  controlling,  indeed,  but  from  a  higher  plane, 
the  phenomena  with  which  he  wishes  specifically  to 
deal.  The  sovereign,  like  the  subject,  is  bound  by 
the  law  of  God  and  of  nature,  but  his  obligation  in 
this  respect  is  to  God,  by  whom  it  will  be  enforced. 
As  to  the  civil  law  —  the  law  of  the  land  —  the 
sovereign's  will  is  the  ultimate  source  of  its  every 
precept,  and  the  will  is  free.2  No  statute,  whether 
enacted  by  himself  or  by  his  predecessor,  survives  a 
duly  signified  change  of  will  on  the  part  of  the  holder 
of  sovereign  power.  Bodin  is  quite  explicit  in  laying 
down  this  fundamental  principle,  but  his  subsequent 
discussion  introduces  some  important  modifications. 
The  laws  of  God  and  of  nature  come  in  to  determine 
the  answer  to  several  questions.  If  a  prince  (sover- 
eign) has  sworn  to  observe  the  laws  o*  ]  e  others, 

1  De  RepuUica,  p.  132. 

2  Bodin  frequently  employs  the  word  princeps  for  ,'n  " ; 
and  this  usage  contributes  greatly  to  aggravate  a  confusion  of  sov      >n 
with  monarch  which  has  its  primary  source  in  the  writ*.  *e 
for  monarchy. 


SOVEREIGN  BOUND  BY  OATH  99 

is  he  bound  thereto  ?  Not,  says  Bodin,  if  he  has 
sworn  merely  with  himself;  but  the  obligation  is 
good  if  another  prince  (sovereign)  has  a  recognized 
interest  in  it,  or  if  it  is  undertaken  toward  the  sub- 
jects as  a  condition  of  reigning.  Here,  however,  the 
force  of  the  obligation  arises,  not  from  the  oath,  but 
from  the  bona  fide  contract,  which,  in  the  case  of  a 
sovereign,  must  be  sharply  distinguished  from  a  law. 
The  prince,  like  the  private  citizen,  is  subject  to  the 
principles  of  natural  law,  among  which  the  keeping 
of  contracts  occupies  a  high  place.  Yet  when  the 
reason  for  a  pledge  has  ceased,  the  obligation  on  the 
part  of  the  prince  ipso  facto  ceases.  Though  Bodin 
does  not  point  it  out,  the  sovereign,  under  this  theory, 
has  a  most  important  advantage  over  his  subjects  in 
the  fact  that  his  decision  as  to  when  the  reason  for  a 
given  pledge  has  ceased  is  very  likely  to  be  final. 
That  -tjie  philosopher  is  conscious  of  a  difficulty 
in  the^  practical  working  of  his  principle  appears, 
however,  in  his  declaration  that  "  well-informed 
princes  do  not  allow  themselves  to  come  under  the 
obligation  of  an  oath  where  matters  of  legislation  are 
concerned,  lest  they  should  not  enjoy  the  supreme 
power  in  the  state." 

In  addition  to  the  keeping  of  promises,  the  other 
principles  of  the  law  of  nature  operate  also  to  hedge 
about  the  sovereign.  Especially  earnest  and  explicit 
is  Bodin  in  the  matter  of  private  property.  The 
omnipotence  of  a  prince  is  only  imperium,  not  domi- 
natus.  The  author  cites  approvingly  the  maxim  of 
Seneca,  "Ad  reges  potestas  omnium  pertinet,  ad 


100  POLITICAL  THEORIES 

singulos  proprietas."  "  Without  just  cause/'  he  says 
"  the  sovereign  cannot  seize  or  grant  away  the  prop- 
erty of  another."  1  And  he  cites  with  a  true  law- 
yer's delight  instances  in  which  the  French  kings 
have  submitted  to  the  judgments  of  their  own  courts 
in  questions  touching  private  property. 

It  is  obviously  with  a  view  to  guarding  against  the 
possibility  that  his  theory  may  be  warped  to  the  sup- 
port of  oppressive  government  that  Bodin  dwells  with 
such  iteration  on  the  restraints  that  the  sovereign 
must  find  in  divine  and  natural  law.  An  elaborate 
distinction  between  the  king  and  the  tyrant  is  worked 
out  on  this  basis.2  The  king  is  he  who  renders  to 
the  laws  of  God  and  nature  the  same  obedience 
which  his  subjects  render  to  him.  The  tyrant  spurns 
these  laws  and  abuses  at  his  caprice  the  liberties  and 
property  of  his  subjects.  But  the  tyrant  is  no  less 
sovereign  than  the  king.  Sovereignty  is  a  political! 
fact,  consisting  only  in  the  possession  and  exercise  of! 
supreme  power ;  the  distinction  between  true  royalty 
and  tyranny  rests  on  a  moral  principle,  and  is  deter- 
mined by  the  mode  of  exercising  this  power. 

In  addition,  however,  to  the  restraints  of  divine 
and  natural  law,  there  are  evidences  in  Bodin's 
thought  of  other  limitations  upon  the  sovereign 
which  cannot  so  easily  be  put  in  the  category  of 
moral  as  distinct  from  legal  limitations.  He  finds 
\aws  in  the  state  which  the  sovereign  cannot  touch. 

1  Hoc  fixum  est :  Principi  alienis  opibus  ac  bonis  manus  afferre 
aut  ea  largiri  cuique  sine  iusta  causa  non  licere.  —  P.  162. 

2  Lib.  II,  cap.  i-iv  passim. 


LEGES  IMPEKII  101 

His  allusions  to  these  superior  rules  are  far  from 
clear,  but  they  seem  to  indicate  a  vague  notion  in 
the  writer's  mind  of  what  we  call  a  constitution, 
that  is,  of  political  principles  or  institutions  so  funda- 
mental as  to  determine  the  very  existence  of  a  state. 
Thus,  in  discussing  the  extent  of  the  sovereign  prince's 
authority  in  respect  to  the  law,  he  says : 

But  so  far  as  concerns  the  leges  imperil,  since  they  are  con- 
nected with  sovereignty  itself,  princes  can  neither  abrogate  nor 
modify  them.  Of  this  class  is  the  Salic  Law,  the  firmest 
foundation  of  this  kingdom.1 

In  not  explaining  fully  {he  conception  involved  in 
the  term  leges  imperil,  Bodin  is  guilty  of  a  serious 
lapse.  His  anxiety  to  have  something  in  a  state 
more  fixed  and  permanent  than  the  human  will  leads 
him  to  limit  the  power  legibus  soluta,  by  leges  that 
are  neither  natural  nor  divine.  But  who  is  the  law- 
maker in  the  case  of  these  leges  imperiif  Bodin 
might  have  answered,  consistently  with  his  general 
theory  of  the  historical  origin  of  the  state,  "nature." 
But  this  conception  of  nature  would  have  been  quite 
distinct  from  that  which  lay  at  the  bottom  of  his 
leges  naturce,  and  would  have  led  to  multiplied  confu- 
sion. Or  he  might  have  found  the  source  of  these 
laws  in  that  "  people  "  in  whose  collective  life  he 
saw  the  only  possibility  of  a  perpetual  sovereignty.2 
But  from  lines  of  reasoning  that  led  in  the  direction 
of  popular  authority,  Bodin's  aversion  was  very  pro- 

1  P.  139.     I  can  find  no  precise  English  equivalent  of  leges  imperil. 
"  Laws  concerning  the  imperium  "  would  perhaps  convey  Bodin's  idea. 

2  Supra,  p.  97. 


102  POLITICAL  THEORIES 

j  nounced ;  a  populus  in  his  view  was  too  nearly  identi- 
cal with  a  disorderly  mob.  So  his  opportunity  to 
elaborate  the  distinction  between  the  constitution- 
making  sovereign  of  a  state  and  the  lawmaking 
sovereign  within  the  constitution  was  lost.  With  his 
exact  definition  of  the  latter,  however,  he  advanced 
the  theory  of  sovereignty  to  a  point  beyond  which  a 
great  many  writers  have  not  passed  even  at  the 
present  day.  J 

The  failure  of  Bodin  to  dilate  upon  the  distinction 
just  noticed  is  the  more  surprising  in  view  of  the 
very  elaborate  discussion  of  the  meaning  of  lex  in  his 
treatment  of  the  characteristic  rights  (iura)  of  sov- 
ereignty.1 The  first  of  these  rights  is  that  of  im- 
posing laws  on  the  citizens  either  collectively  or 
individually  (legem  universis  ac  singulis  cwibus  dare). 
Lex  is  .sharply  distinguished  from  edictum  or  decre- 
tum.  'The  sovereign  makes  law;  the  magistrates 
issue  decrees.  So  the  relation  of  custom  (consuetudo) 
to  law  is  effectively  set  forth.  It  is  not  true,  he 
holds,  that  custom  and  law  are  of  like  character  and 
force,  and  that  the  people,  as  the  source  of  the  one, 
is  on  a  level  with  the  prince,  the  source  of  the  other. 
Law  can  abolish  custom ;  not  so  the  converse : 2 
custom  has  no  sanction,  while  sanction  is  character- 
istic of  law ;  the  force  of  custom  is  precarious  till  the 
sovereign  establishes  a  sanction,  whereupon  the  cus- 

1  Lib.  I,  cap.  x. 

2  This  apparently  doubtful  proposition  he  fortifies  by  declaring  it 
the  duty  of  the  magistrates  to  recall  into  operation  laws  whose  force 
has  been  weakened  by  custom. 


FUNCTIONS  OF  SOVEREIGNTY  103 

torn  at  once  becomes  law.  Hence,  he  concludes,  both 
law  and  custom  depend  on  the  will  of  those  who 
hold  the  sovereign  power  in  the  state.  Again,  a 
clear  distinction  between  lex  and  ius  is  noted.  lus 
relates  to  what  is  just  and  good,  without  regard  to 
any  command ;  lex  relates  to  the  sovereignty  of  one 
issuing  a  command.1  In  short,  law,  he  says,  is  noth- 
ing else  than  a  command  of  the  sovereign.  After 
this,  the  conception  of  jleges  imperii,  above  the 
sovereign  will,  seems  very  much  out  of  place  in 
Bodin's  system. 

Legislation,  then,  is  not  only  the  chief  function  of 
the  sovereign;  it  is  practically  the  sole  and  all  in- 
clusive function.  For  the  sake  of  clearness,  however, 
Bodin  specifies  and  discusses  various  specific  subjects 
which  may  be  regarded  as  peculiar  to  the  scope  of 
sovereign  action.  Chief  among  these  are  the  deter- 
mination of  questions  of  peace  and  war ;  the  appoint- 
ment of  magistrates ;  jurisdiction  on  final  appeal ; 
the  pardoning  power ;  the  exaction  of  oaths  of  fidelity 
and  obedience  from  all  subjects ;  the  coining  of  money ; 
and  the  imposition  of  taxes. 

5.   Forms  of  State  and  of  Government 

Bodin's  epoch-making  theory  of  sovereignty  is  the 
basis  of  an  equally  notable  doctrine  as  to  the  forms 
of  state  and  of  government.  His  thought  here  is 
singularly  clean-cut  and  exact.  In  the  first  place  he 

1  Plurimum  distat  lex  a  iure :  ius  enim  sine  iussu,  ad  id  quod 
sequum  bonum  est ;  lex  autem  ad  imperantis  maiestatem  pertinet.— - 
Lib.  I,  cap.  viii. 


104  POLITICAL  THEORIES 

distinguishes  with  great  precision  between  state  and 
government  —  justly  taking  pride  in  the  originality 
of  the  distinction,  to  the  lack  of  which  he  attributes 
important  defects  in  the  theories  of  Aristotle  and 
others.1  The  possession  of  supreme  power  determines 
the  form  of  state,  but  the  system  and  method  through 
which  this  power  is  exercised  determine  the  form  of 
government. 

As  to  the  forms  of  state,  there  are,  Bodin  holds, 
three  and  three  only  —  monarchy,  aristocracy  and 
democracy.  The  basis  of  the  classification  is  purely 
numerical.  When  the  sovereign  power  is  in  an  indi- 
vidual, the  state  is  monarchic ;  when  the  sovereignty 
is  in  less  than  a  majority  of  the  citizens,  the  state  is 
aristocratic ;  and  when  sovereignty  rests  in  the  whole 
body  of  citizens,  that  is,  in  the  majority,  the  state  is 
democratic.  In  this  classification,  with  his  rigid 
definition  of  sovereignty  at  its  base,  there  is  no  room 
at  all  for  the  idea  of  a  mixed  form,  which  had  had 
so  great  a  vogue  since  Polybius.  Against  this  idea 
Bodin  directs  a  most  vigorous  polemic,2  insisting  that 
a  society  in  which  supreme  power  is  claimed  in  part 
by  various  elements  is  not  a  state  at  all,  but  anarchy. 
What  has  been  treated  by  previous  philosophers  as  a 
division  of  sovereignty  in  many  states  has  been  in 
reality  a  distribution  of  the  functions  incidental  to  the 

1  Illud  admonendi  sumus,  reipublicae  statum  ab  imperandi  ratione 
distare  plurimum,  quod  ante  nemo,  quantum  intelligere  potuimus, 
animadvertit.  —  Lib.  II,  cap.  ii,  ad  init.  et  passim.     And  again  :  Aris- 
toteles  gubernandi  civitatis  rationem  pro  statu  reipublicse  usurpavit. 
—  Lib.  II,  cap.  vii  (p.  367). 

2  Lib.  II,  cap.  i. 


FORMS  OF  STATE  AND  GOVERNMENT      105 

execution  of  the  sovereign  will.  It  is  in  administra- 
tion, not  in  sovereignty,  that  there  may  be  such  joint 
participation  of  different  elements  as  to  justify  the 
designation  "mixed."  A  monarchic  state  has  an 
aristocratic  government  when  the  sovereign  monarch 
confers  honours  and  offices  upon  certain  classes  only ; 
it  has  apemocratic  government  when  honour  and  office 
are  bestowed  on  all  classes  alike.  The  early  Roman 
republic  was  a  democratic  state  with  an  aristocratic 
government.  The  Athens  of  Pericles  was  democratic 
in  both  state  and  government. 

In  applying  his  theory  to  contemporary  systems, 
Bodin,  with  admirable  logic,  denies  to  the  Holy 
Roman  Empire  the  character  of  a  monarchy,  and,  in 
view  of  the  extensive  powers  of  the  Diet,  classes  it 
with  the  aristocracies.  He  is  doubtful,  however, 
whether  it  is  really  to  be  regarded  as  a  simple  state 
and  not  rather  as  a  confederation.1  England,  France 
and  Spain  are  classed  as  monarchies  in  the  strict  sense, 
though  only  after  an  exhaustive  and  not  altogether 
convincing  iscussion  of  the  relations  between  the 
kings  and  tire  respective  parliaments.  England  gives 
him  the  most  trouble,  on  account  of  the  rights  claimed 
by  the  lawyers  for  Parliament ;  but  in  an  investiga- 
tion of  incidents  in  the  Tudor  reigns  he  finds  ground 
for  the  conclusion  that  ultimate  authority  is  really  in 
the  king  and  that  the  state  therefore  is  monarchic. 
As  to  France,  Bodin  manifests  great  impatience  with 
those  (meaning  Hotman  and  the  other  anti-monarchic 
writers)  who  falsely  pretend  that  the  estates  and 

1  De  Republica,  II,  vi. 


106  POLITICAL  THEORIES 

parlements  have  had  any  share  in  the  sovereignty, 
and  he  so  interprets  French  history  and  law  as  to 
show  that  those  bodies  have  been  merely  advisory, 
while  the  king  has  been  absolute. 

While  the  criterion  as  to  the  form  of  state  is 
simple  and  exact,  and  permits  no  qualification,  each 
form,  nevertheless,  may  include  several  species,Hlif- 
fering  from  one  another  in  respects  that  do  not  affect 
the  fact  of  pure  power.  Of  monarchy,  thus,  there 
are  three  species.  The  first  is  the  dominatus,  or  des- 
potism, in  which  the  monarch,  like  the  ancient  patri- 
archs, rules  his  subjects  as  the  paterfamilias  rules  his 
slaves.  Of  this  primitive  type  the  Muscovites  and 
Turks  are,  Bodin  thinks,  the  chief  existing  survivals. 
The  second  species  is  the  royal  monarchy  (monarchia 
regalis),  in  which  the  subjects  are  secure  in  their 
rights  of  person  and  property,  while  the  monarch, 
respecting  the  laws  of  God  and  of  nature,  in  all  mat- 
ters outside  of  these  receives  willing  obedience  to  the 
laws  he  himself  establishes.1  The  third  species  is  the 
tyranny  (tyrannis),  in  which  the  priitce,  spurning 
the  laws  of  nature  and  of  nations,  abuse!  his  subjects 
according  to  his  caprice.  Of  these  three  species, 
Bodin  regards  the  royal  monarchy  not  only  as  the 
ideal  type  of  monarchic  state,  but  also  as  the  best 
form  of  state  in  general.  The  tyrant  he  describes  on 
the  conventional  lines,  but  he  does  not  permit  a  pro- 
found sense  of  the  moral  turpitude  of  tyranny  to 

1  Subditi  libertate  ac  dominio  rerum  fruentes,  sui  principis  legibus 
obsequuntur;  perinde  ac  princeps  ipse  divinis  ac  naturae  imperils 
obtemperandum  iudicat.  —  Lib.  II,  cap.  iii. 


FORMS  OF  STATE  COMPARED          107 

affect  the  conception  of  the  rights  of  sovereignty.  If 
a  tyrant  is  a  legitimate  sovereign,  the  duty  of  the 
subject  is  obedience,  no  matter  how  scandalous  the 
crimes  and  vices  of  the  ruler.1  Yet  he  concedes  that 
it  would  be  justifiable  for  another  sovereign  prince  to 
interfere  and  despatch  such  an  offender. 

The  systematic  comparison  of  the  various  forms 
of  state  which  Bodin  makes  in  the  Republic2  is  in 
his  most  judicious  and  philosophical  vein.  The  popu- 
lar state  seems,  he  admits,  to  be  in  many  respects 
more  in  conformity  to  nature  (magis  consentanea  na- 
turce)  than  aristocracy  or  monarchy ;  yet  the  fickle- 
ness, venality  and  administrative  inefficiency  of 
democracy  are  commonplaces  of  both  theory  and  ob- 
servation, and  for  the  strength  of  the  Swiss  —  the 
only  conspicuously  successful  modern  popular  state  — 
he  finds  exceptional  causes3  which  vitiate  any  con- 
clusions based  upon  their  peculiar  political  system. 
Again,  aristocracy,  as  the  mean  between  the  two  ex- 
treme forms,  and  as  securing  adequate  recognition  to 
virtue  and  property,  seems  to  have  much  in  its  favour; 
but  here  again  he  finds  in  both  theory  and  history 
(Genoa  furnishing  the  decisive  example)  reasons  for 
regarding  this  form  as  in  the  last  analysis  unsatisfac- 
tory. In  monarchy,  finally,  he  sees  grave  difficulties 

1  Nee  singulis  civibus  nee  universis  fas  est  summi  principis  vitam, 
famam  aut  fortunas  in  discrimen  vocare,  .  .  .  etiarnsi  omni  scelerum 
ac  flagitiorum  .  .  .  turpitudine  infamis  esset.  —  Lib.  II,  cap.  v. 

2  Lib.  VI,  cap.  iv  et  seq. 

8  E.g.,  the  Swiss  early  drove  out  the  nobility  and  thus  got  rid  of 
one  source  of  faction  ;  and  the  most  turbulent  elements  of  the  popu- 
lation are  drawn  off  by  the  practice  of  going  abroad  as  mercenaries. 


108  POLITICAL  THEORIES 

and  dangers,  especially  in  connection  with  succession 
to  the  throne,  and  with  the  demoralizing  effects  of 
great  power  on  individual  character.  Yet,  with  the 
matter  of  succession  firmly  fixed  on  the  principle  of 
heredity,  primogeniture  and  the  exclusion  of  the 
female  lines,  he  thinks  monarchy  the  best  form.  In 
ordinary  administration  a  monarch  can  from  his  ex- 
alted position  draw  upon  all  classes  and  capacities  in 
the  population  for  service,  while  the  rivalry  of  fac- 
tions in  democracy  and  aristocracy  limits  participa- 
tion in  the  public  service  to  the  members  of  that  one 
which  happens  to  be  triumphant.  In  emergencies, 
the  requisite  concentration  of  power  is  in  monarchy 
the  normal  condition,  while  in  the  other  forms  it  is 
secured  only  through  extraordinary  devices,  such  as  the 
dictatorship.  Monarchy,  finally,  is  the  only  form  that 
is  adapted  to  the  development  of  extensive  dominion 
—  of  the  great  states  in  which  the  highest  welfare 
and  happiness  of  the  people  are  chiefly  to  be  found.1 

6.    Theory  of  Revolutions 

Bodin's  treatment  of  the  transformations  of  states 2 
is  very  obviously  modelled  on  the  famous  book  devoted 
to  this  subject  in  the  Politics  of  Aristotle.  But  it  is 
by  no  means  to  be  said  that  the  French  philosopher 
is  a  servile  imitator  of  the  Greek.  On  the  contrary, 
Bodin's  discussion  is  as  distinctly  an  original  and  im- 
portant contribution  to  the  subject  as  was  Aristotle's 

1  He  says  that  if  the  Swiss  should  attempt  a  career  of  expansion 
and  conquest,  their  liberty  and  prosperity  as  a  democracy  would  soon 
disappear.  a  De  Republica,  Lib.  IV. 


REVOLUTION  INEVITABLE  109 

nineteen  centuries  earlier.  There  is  at  the  outset 
a  decisive  difference  between  the  standpoints  from 
which  the  subject  is  viewed  by  the  two  philosophers. 
Aristotle,  as  we  have  seen,1  practically  assumes  that 
perfect  stability  is  the  ideal  end  of  political  organiza- 
tion and  activity,  and  judges  institutions  accordingly. 
Bod  in,  on  the  other  hand,  is  influenced  throughout 
his  philosophy  by  the  conception  of  development  and 
progress  through  decay  and  death.  Transformation 
of  states  is  inevitable,  he  believes,  and  the  effort  of 
man  should  be  directed,  not  to  the  prevention  of 
change,  but  to  the  determination  of  the  manner  in 
which  it  shall  take  place.  Revolution  and  the  death 
of  a  state  may  be  sudden  and  violent,  or  it  may  be 
slow,  peaceful  and  in  a  sense  voluntary.  The  latter 
is  the  happier  and  more  "  natural "  manner  in  com- 
monwealths, as  in  the  death  of  individuals.2 

Employing  his  doctrine  of  sovereignty,  Bodin  dis- 
tinguishes two  kinds  of  transformation  —  alteratio, 
which  affects  any  law  or  institution  not  involving  the 
supreme  power,  and  conversio,  or  revolution  in  the 
strict  sense,  through  which  a  change  in  the  location 
of  the  sovereignty  takes  place.  Since  there  are  but 
three  forms  of  state,  there  are  six  species  of  conversio, 
as  each  form  may  be  supplanted  by  either  of  the 
other  two.  The  line  between  mere  alteration  and 

1  Political  Theories,  Ancient  and  Mediceval,  pp.  84,  85. 

2  Reipublicse  conversionem  vel  occasum  iudicamus  naturae  con- 
gruentem  quern  post  infinita  psene  secula  paulatim  fieri  necesse  est. 
—  De  Republica,  I,  iv. 

Beatior  est  eorum  conditio  qui  conversiones  .  .  .  et  obitum  minus 
sentiunt.  —  Hid. 


110  POLITICAL  THEORIES 

true  revolution  is  maintained  with  the  utmost  rigidity 
by  Bodin ;  a  total  change  in  laws,  in  religion,  even  in 
location  does  not  constitute  revolution.  But  when 
supreme  power  passes  from  monarch  to  aristocracy  or 
people,  or  vice  versa,  then,  though  laws,  religion  and 
all  other  institutions  remain  as  before,  there  is  never- 
theless true  revolution.  The  six  kinds  of  conversio 
are  discussed  at  length  by  Bodin,  with  copious  his- 
torical illustrations,  and  the  conclusion  is  reached  that, 
of  the  three  forms  of  state,  monarchy,  especially  when 
hereditary,  is  the  most  stable,  and  democracy  the 
least  so. 

Though  the  causes  that  render  revolution  inevit- 
able lie  beyond  human  control,  their  workings  can 
nevertheless  be  detected  and  the  tendencies  in  some 
measure  modified  or  counteracted  by  human  intelli- 
gence. Bodin's  list  of  these  causes  and  his  sug- 
gestions for  dealing  with  them  exhibit  a  curious 
combination  of  pseudo-science  and  real  philosophical 
insight.  Classifying  the  causes  as  divine,  human  and 
natural,  he  abandons  at  once  all  hope  of  ascertaining 
the  secret  will  of  God  or  of  devising  rules  by  which 
the  infinite  mutations  of  the  free  human  will  may  be 
foretold  or  regulated.  But  there  is,  he  holds,  a  body 
of  "  natural "  facts  from  which,  by  sound  interpreta- 
tion, the  catastrophic  points  in  the  careers  of  common- 
wealths, as  of  individuals,  may  be  detected.  These 
important  "  facts  "  prove  to  be  the  movements  of  the 
heavenly  bodies,  and  the  chapter  in  which  he  deals 
with  them 1  is  a  queer  medley  of  astronomy,  astrology 

1  Lib.  IV,  cap.  ii. 


IMPORTANT  QUESTIONS  OF  POLICY  111 

and  mystic  Pythagorean  and  Platonic  mathematics.1 
But  after  revealing  in  this  chapter  a  certain  leaning 
toward  the  occult  sciences  which  found  expression  in 
other  of  his  writings,2  Bodin  resumes  the  role  of  a 
clear-headed  student  of  politics  and  discusses  with 
great  suggestiveness  some  of  the  social  and  govern- 
mental conditions  that  have  an  immediate  bearing 
on  the  transformation  of  states.  Here  occurs  his 
examination  of  the  questions  whether  the  tenure  of 
magistrates  should  be  permanent  or  limited,  whether 
perfect  harmony  or  some  judicious  degree  of  discord 
and  rivalry  among  the  magistrates  is  the  better  guar- 
antee against  disturbance  to  the  sovereign,  and  what 
in  general  should  be  the  relation  of  the  sovereign  to 
civil  and  religious  parties.  Much  more  significant 
than  the  details  of  his  answers  is  the  fact  that  he  in 
most  cases  avoids  any  sweeping  a  priori  solution  of 
the  problem  and  emphasizes  the  general  principle 
that  the  character  and  institutions  of  each  particular 
form  of  state  must  be  made  the  basis  of  the  conclu- 
sion. Incidentally  to  the  discussion,  though  not 
always  relevantly,  he  disapproves  of  the  personal  par- 
ticipation of  monarchs  in  the  administration  of  justice, 

1  Bodin  takes  great  pains,  before  setting  forth  his  own  bizarre 
calculations,  to  show  the  shortcomings  of  other  astrologers.     Thus 
he  gravely  refutes  the  ancient  horoscope  of  Rome,  based  on  the  dem- 
onstration that  the  city  was  founded  "  in  the  third  year  of  the  sixth 
olympiad,  on  the  twenty-first  of  April,  at  a  little  before  three  o'clock 
P.M.,  with  Saturn,  Mars  and  Venus  in  Scorpio,  Jupiter  in  Pisces,  etc." 
The  positions  assigned  to  the  planets  are  obviously,  Bodin  holds, 
characteristic  of  a  mercantile  and  philosophical  nation  and  could  not 
belong  to  so  warlike  a  people  as  the  Romans. 

2  C/.  also  his  works  on  witchcraft  and  sorcery,  esp.  the  De'mono- 
manie,  described  in  Baudrillart,  op.  cit.,  pp.  183  et  seq. 


112  POLITICAL  THEORIES 

repudiates  the  social  expediency  of  duelling,  and  de- 
clares that  since  belief  is  not  subject  to  compulsion,1 
force  is  but  an  indifferent  instrument  for  the  main- 
tenance of  uniformity  in  religion  among  the  citizens. 
Yet  he  will  not  concede  the  expediency  of  unlimited 
freedom  of  expression;  when  a  religion  is  once  defini- 
tively established  for  a  people,  then  further  discussion 
of  it  should  be  prohibited  under  heavy  penalties, 
since,  he  observes,  there  is  nothing  so  true  and  good 
that  skilful  talkers  cannot  make  it  appear  doubtful. 
The  recent  extravagances  of  the  Anabaptists  in  Ger- 
many serve  as  an  illustration  of  the  danger  of  per- 
mitting eloquent  agitators  to  have  free  rein.  The 
right  of  the  citizen  to  bear  arms,  also,  is  one  of  the  priv- 
ileges which  Bodin  regards  as  promotive  of  sedition  and 
as  therefore  to  be  closely  restricted  by  the  sovereign. 

But  none  of  these  various  specific  measures  is  to 
him  so  important,  in  a  philosophical  view  of  the 
causes  and  preventives  of  revolution,  as  the  careful 
study  of  the  underlying  and  permanent  characteristics 
peculiar  to  each  state  and  people,  and  the  adaptation 
of  institutions  to  these  peculiarities.  Most  significant 
in  this  respect,  he  holds,  is  the  influence  of  the  physi- 
cal environment.  The  political  and  social  bearings 
of  climate  and  topography,  he  thinks,  have  never  been 
scientifically  analyzed,  and  accordingly  he  makes 
them  the  subject  of  a  long  and  careful  investiga- 
tion in  both  the  Method  and  the  Republic.2  This 

1  Cum  ea  sit  in  hominibus  insita  vis  ac  natura  ut  ad  aliquid 
assentiendum  sponte  duci  velit,  cogi  nolit.  —  Lib.  IV,  cap.  vii. 

2  Methodus,  cap.  v ;  De  Republica,  Lib.  V,  cap.  i. 


THE  INFLUENCE  OF  CLIMATE         113 

study,  though  in  places  decidedly  weak  in  the 
light  of  modern  physiology  and  history,  is  never- 
theless conceived  and  executed  in  the  true  scientific 
spirit,  and  it  fairly  justifies  his  claim  to  originality.1 
According  to  latitude  national  characteristics  vary 
thus:  northern  peoples  excel  in  bodily,  physical 
strength,  southern  peoples  in  craft  and  genius.  The 
peoples  between  the  extremes  excel  each  extreme  in 
the  specialty  of  the  other ;  hence,  as  embodying  the 
mean,  the  middle  peoples  are  best  adapted  to  control 
politics  and  maintain  justice.  Fighting  power  is 
shown  by  history  to  have  come  chiefly  from  the  north 
(witness  the  Scythian,  Varangian  and  Swiss  body 
guards  of  southern  monarchs),  philosophy  and  abstract 
speculation  in  general  from  the  south,  and  political 
and  legal  science  from  the  intermediate  regions.2 
Distinctions  by  longitude  are  worked  out  in  the  same 
way,  but  with  hardly  so  positive  conclusions :  in  gen- 
eral he  finds  that  western  nations  have  more  of  the 
characteristics  of  the  northerners,  and  eastern  peoples 
more  resemblance  to  those  of  the  south.  Topo- 
graphical differences  also  express  themselves  in  na- 
tional peculiarities,  the  most  important  fact  here  being 

1  Both  Plato  and  Aristotle  had  touched  on  the  distinctions  between 
peoples  according  to  situation,  but  neither  had  elaborated  the  idea. 
Cf.  The  Laws,  V,  end,  and  The  Politics,  IV,  vi. 

2  The  middle  has  been  the  seat  of  the  great  empires  (e.g.  Rome), 
which  have  been  able  to  extend  their  sway  by  conquest  more  to  the 
south  than  to  the  north.     He  finds  corroboration  of  his  view  in  the 
demonstration  that  the  English  conquered  the  French  in  war,  but  not 
the  Scotch,  and  that  on  the  other  hand  the  French  generally  got  the 
better  of  the  English  in  diplomacy,  but  were  worsted  in  that  field  by 
the  Spanish. 

VOL.  II. 1 


114  POLITICAL  THEORIES 

elevation.  Between  mountains  and  plains  he  finds 
as  clear  distinctions  as  between  northern  and  southern 
latitudes. 

But  while  Bodin  ascribes  to  the  physical  environ- 
ment an  important  influence  on  national  character 
and  institutions,  he  guards  carefully  in  this  case,  as 
in  his  discussion  of  the  influence  of  the  stars,  against 
any  strongly  fatalistic  implication.  In  the  conduct 
of  government  and  in  legislation  heed  must  be  paid 
to  the  feelings  and  prejudices  which  depend  upon 
material  surroundings ;  but  this  does  not  mean  that 
there  is  any  absolute  limit  fixed  by  the  latter.  On 
the  contrary,  the  form  of  government  or  legislation 
judiciously  directed  can  have  a  determining  influence 
on  popular  character.  A  resolute  tyranny  can  make 
a  strong  people  weak  and  spiritless;  or  a  popular 
regime  may  develop  political  ability  in  a  nation  that 
has  formerly  been  slavish  and  oppressed.  Material 
influences,  therefore,  must  be  carefully  considered  in 
any  view  of  political  institutions,  but  their  effect 
should  be,  not  to  paralyze,  but  to  stimulate,  the  in- 
telligence of  the  statesman. 

7.   Principles  of  Government  and  Administration 

While  the  greatest  distinction  of  Bodin  as  a  politi- 
cal philosopher  lies  in  those  broad  doctrines  of  sover- 
eignty and  of  the  transformations  of  states  that  have 
already  been  described,  his  work  abounds  also  in  dis- 
cussions of  the  problems  of  practical  policy  —  of 
those  subjects  which  lie  in  the  field  rather  of  govern- 
ment than  of  the  state,  as  he  distinguishes  the  concepts. 


ORGANS  OF  GOVERNMENT  115 

His  conclusions  are  strictly  conformed,  however,  to 
the  requirements  of  the  fundamental  dogmas  of  his 
system,  and  the  subjects  which  he  discusses  are  in 
most  cases  those  which  are  of  vital  contemporaneous 
concern  to  the  French  monarchy. 

The  essential  elements  of  government,  as  distinct 
from  the  sovereign,  are  a  senate,  or  advisory  council, 
and  a  body  of  magistrates.  The  senate  he  conceives 
to  be  an  indispensable  organ  in  every  state,  whether 
monarchic,  aristocratic  or  popular ; l  but  its  function 
involves  no  participation  in  sovereignty,  and  the  pre- 
tensions to  such  participation  that  are  made  on 
behalf  of  the  parliaments  and  estates-general  in  the 
monarchies  of  his  own  day,  Bodin  is  at  the  greatest 
pains  to  refute.  Magistrates  he  classifies  in  a  two- 
fold manner :  first,  those  endowed  with  imperium,  or 
the  authority  to  issue  commands,  as  contrasted  with 
those  whose  functions  are  purely  ministerial;  and 
second,  those  whose  duties  are  general  and  permanent 
as  contrasted  with  those  who  are  appointed  merely  for 
the  execution  of  a  specific  task.2  The  fundamental 
question  in  connection  with  magistrates  is  their  rela- 
tion to  the  sovereign  and  his  law.3  Bodin's  conclusion 
here  is  that  when  the  sovereign's  command  contra- 
venes the  law  of  God  or  of  nature,  the  magistrate  is 
not  bound  to  obey ;  when  it  contravenes  the  law  of  na- 
tions (ius  gentium)  or  the  law  of  the  land,  obedience  is 

1  De  Republica,  Lib.  Ill,  cap.  i. 

2  Ibid.,  cap.  ii  and  iii.     Bodin  points  out  that  historically  the  per- 
manent magistracy,  with  full  powers,  developed  out  of  the  system  of 
temporary  officials  appointed  by  the  sovereign  for  particular  tasks. 

8  Lib.  Ill,  cap.  iv. 


116  POLITICAL  THEORIES 

obligatory.  The  possibility  of  trouble  in  the  working 
of  this  doctrine,  due  to  the  uncertainty  of  the  "  law 
of  nature,"  is  fully  appreciated  by  Bodin,  who  admits 
the  great  diversity  of  opinion  as  to  the  content  of 
that  law.  He  conceives,  however,  that  moral  iniq- 
uity will  always  raise  in  the  virtuous  magistrate's 
mind  a  doubt  that  is  to  be  respected;1  and  he  enjoins, 
furthermore,  that  where  there  is  a  difference  of  opin- 
ion in  the  magisterial  body  on  a  given  point,  there 
must  be  no  factious  resistance  of  one  or  few  officials 
to  the  judgment  of  the  majority,  since  there  is 
greater  peril  in  blocking  the  wheels  of  government 
than  in  the  transgression  of  natural  law  at  an  obscure 
point.  But  whatever  the  conception  of  magisterial 
duty  when  the  question  of  morality  is  raised,  there 
is  no  possible  ground  for  hesitation  when  the  ques- 
tion is  merely  that  of  the  interest  of  the  state; 
here  the  sovereign's  command  is  binding,  entirely 
regardless  of  the  subordinate's  view  as  to  its  expedi- 
ency. In  the  field  of  politics  proper,  then,  the  su- 
premacy of  the  sovereign  will  is  not  to  be  questioned ; 
and  this  doctrine  is  clinched  by  the  dogma,  that  in 
the  presence  of  the  sovereign  the  powers  of  all  mag- 
istrates are  suspended.2 

The  important  economic  problems  involved  in  gov- 
ernment and  administration  are  treated  by  Bodin  in 
connection  with  the  prevention  or  regulation  of  revolu- 
tion. A  prime  cause  of  sedition  is  to  be  found,  he  be- 

1  "  Optima  est  cautio  sapientura  qui  vetant  id  facere  quod  dubites 
iustum  sit  necne." 

2  Lib.  Ill,  cap.  vi. 


ECONOMIC  PROBLEMS  117 

lieves,  in  great  inequalities  of  wealth,  but  he  dismisses 
with  contempt  the  communistic  doctrines  of  Plato  and 
More.1  Compulsory  equality  of  wealth,  especially 
of  landownership,  he  points  out,  implies  limitation 
of  population ;  but  such  limitation  he  regards  as  an 
evil,  since  the  more  populous  states  are  always  the 
more  prosperous.  On  the  question  of  usury,  on 
the  other  hand,  Bodin  holds  to  the  ancient  belief: 
the  taking  of  interest  is  a  social  evil,  promoting 
speculation  and  hence  gross  and  unreasonable  ine- 
qualities of  wealth,  and  he  regrets  the  tendency 
which  he  detects  to  tolerate  low  rates,  since  these, 
he  thinks,  will  be  merely  an  entering  wedge  for  the 
great  abuses  of  the  system.  The  finances  of  the  state 
he  treats  with  considerable  fulness,2  both  as  to  sources 
of  revenue  and  methods  of  administration.  Of  the 
seven  sources  of  revenue  which  he  specifies,3  the 
public  lands  and  trade  are  most  particularly  dis- 
cussed. As  to  the  former,  he  goes  fully  over  the 
ground  that  had  long  been  a  subject  of  controversy 
among  publicists,  and  sustains  the  doctrine  of  a  dis- 
tinction between  the  public  domain  and  the  private 
estates  of  the  sovereign  monarch,  with  the  former  se- 
cure against  alienation.  Trade  impresses  him  as  on 
the  whole  an  undignified  instrumentality  of  revenue 
for  a  sovereign,  and  indeed  as  incompatible,  in  its 

1  Re  vera  nihil  magis  pestiferum  ac  perniciosum  sequatione  ilia 
bonorum  ac  spe  novarum  tabularum  cogitari  possit.  —  Lib.  V,  cap.  ii. 

2  Lib.  VI,  cap.  ii-s  "  De  ^Erario." 

8  The  seven  are :  public  lands ;  spoils  of  enemies ;  gifts  of  friends; 
quotas  and  contributions  of  allies;  trade  (mercatura) ;  duties  on  im- 
ports and  exports ;  taxation  of  subjects. 


118  POLITICAL  THEORIES 

petty  forms,  with  good  social  position  even  among 
subjects.  That,  especially  since  the  discovery  of  the 
Indies,  princes  have  found  it  convenient  to  supple- 
ment their  incomes  by  this  means,  he  does  not  deny ; 
but  he  seems  relieved  to  be  able  to  state  that  the 
King  of  Portugal  is  the  only  monarch  who  notori- 
ously derives  a  large  revenue  from  mercantile  opera- 
tions. Yet  seeking  profit  from  legitimate  commerce 
is  not  the  worst  fault  that  a  monarch  can  exhibit ; l 
and  of  all  mean  kinds  of  traffic,  none  seems  so  con- 
temptible to  him  as  the  traffic  in  offices  and  dignities, 
which  is  scandalously  prevalent  in  royal  circles.2  Fi- 
nally, Bodin's  consideration  of  the  economic  side  of 
public  policy  includes  a  learned  and  lucid  exposition 
of  the  coinage,  with  a  vigorous  denunciation  of  the 
practice  of  debasement.8 

A  function  of  administration  which  he  thinks  has 
never  received  treatment  proportionate  to  its  impor- 
tance is  that  of  treaty  making  with  other  sovereigns. 
The  chapter  devoted  to  this  subject4  embodies  an  out- 
line sketch  of  that  body  of  principles  and  practices 
which  was  soon  to  take  form  as  international  law. 
His  classification  of  treaties  and  description  of  the 
processes  through  which  they  come  into  being  need 
not  detain  us,  but  it  is  interesting  to  note  the  stress 

1  "  Ego,  vero,  si  statuendum  mihi  sit,  principem  mercatorem  nolo ; 
sin  optio  detur,  mercatorem  malo  quam  tyrannum,  et  patricios  viros 
negotiari  quam  praedari." 

2  "  Nullum  sordid! us,  nullum  turpius,  nullum  detestabilius  magis- 
tratuum  et  honorum  mercatura." 

«  Lib.  VI,  cap.  iii. 

4  Lib.  V,  cap.  vi :  "  De  iure  feciali  deque  f cederibus  et  pacis  actioni- 
bus  inter  populos  sanciendis  ac  muniendis." 


BODIN  ON  THE   CENSORSHIP  119 

which  he  puts  upon  good  faith  in  observing  them.  His 
standpoint  here  is  the  law  of  nature,  which  prescribes 
the  keeping  of  agreements ;  and  his  attitude  is  wholly 
different  from  that  of  Machiavelli.  Yet  a  fall  con- 
sciousness of  the  wide  divergence  between  theory  and 
practice  in  the  matter  is  indicated  by  his  dictum  that 
the  surest  guarantee  of  treaties  is  that  the  terms  be 
as  fair  as  possible,  and  by  his  citation,  with  approval, 
of  the  remark  of  the  Consul  Plancius :  Neminem  popu- 
lum  diutius  ea  conditione  esse  posse  cuius  eum  poeniteat. 
In  conclusion,  some  light  is  thrown  on  Bodin's  gen- 
eral theory  of  government  by  his  earnest  plea  for  such 
an  institution  as  the  Roman  censorship.1  Both  the 
statistical  and  the  disciplinary  functions  of  this  office 
he  regards  as  indispensable  to  good  government.  The 
enumeration  of  the  people  and  the  ascertainment  of 
their  social  and  economic  condition  are  of  the  highest 
importance  for  the  proper  administration  of  the  rev- 
enue and  police  systems :  nor  can  the  objection  be 
regarded  that  the  census  violates  the  privacy  and 
exposes  the  business  relations  of  the  individual ;  no 
one  whose  life  is  what  it  should  be  can  object  to  such 
a  degree  of  publicity.  The  restoration  of  the  moral 
discipline  of  the  censorship,  moreover,  Bodin  conceives 
as  most  desirable  in  the  modern  state,  especially  in 
view  of  the  fact  that  the  authority  of  the  pater  fa- 
milias  has  lost  its  strength  and  efficacy,  and  the  eccle- 
siastical control  over  conduct,  exercised  by  the  Pope 
and  the  clergy,  has  through  abuse  been  brought  into 
disrepute  and  to  the  verge  of  extinction.  Referring 

1  Lib.  VI,  cap.  i. 


120  POLITICAL  THEOKIES 

to  the  disciplinary  authority  exercised  by  the  Calvinist 
elders  (antiques)  in  the  Swiss  cities  and  the  opposition 
it  has  aroused,  he  lays  it  down  peremptorily  that  either 
censors  must  be  established  or  the  ecclesiastics  must 
be  permitted  to  exercise  the  censorship ;  for  in  no  case 
can  so  necessary  yet  so  peculiar  a  function  be  satis- 
factorily discharged  by  the  ordinary  magistrates. 

8.   Bodins  Place  in  the  Histoi*y  of  Political  Theories 

That  the  philosopher  who  shaped  the  system 
sketched  above  must  occupy  an  important  position 
in  the  general  history  of  politics  goes  without  saying. 
As  to  the  precise  nature  of  this  position  opinions  have 
varied  somewhat.  Janet  seems  to  have  been  but 
little  impressed  with  Bodin's  philosophy  and  to  have 
regarded  it  as  an  ambitious  but  unsuccessful  attempt 
to  improve  upon  Aristotle.  Bluntschli  and  Gierke 
have  attached  greater  significance  to  it,  and  hi  this 
respect  their  feeling  has  been  shared  by  Hallam  and 
Pollock.  Baudrillart,  whose  exhaustive  study  of 
Bodin  has  greatly  influenced  all  later  students,  was 
naturally  enthusiastic  about  the  subject  of  his  essay, 
but  still  his  appreciation  often  ran  into  a  minor  chord, 
and  with  characteristic  French  spirit  he  lamented 
Bodin's  ineffective  style.  On  one  point,  however, 
there  is  substantial  and  well-founded  agreement 
among  historians  and  critics,  and  that  is,  that  Bodin 
brought  back  political  theory  to  the  form  and  method 
from  which  it  had  gone  far  astray  since  Aristotle, 
and  gave  to  it  again  the  externals,  at  least,  of  a 
science.  Machiavelli  had,  as  we  have  seen,  taken 


BODIN,    MACHIAVELLI,   ARISTOTLE  121 

some  steps  in  that  direction.  Bodin  completed  the 
movement  which  the  Italian  initiated.  In  Machia- 
velli  the  method  of  historical  research  and  contem- 
porary observation  was  fully  appreciated,  but  in  its 
application  it  became  little  more  than  mere  empiri- 
cism, and  produced  rather  a  body  of  principles  for 
the  practical  conduct  of  government  than  a  theory 
of  the  state.  Bodin  supplied,  from  the  stores  of  his 
systematic  philosophy,  precisely  the  factors  which 
were  lacking  in  the  Florentine's  make-up,  and,  with- 
out neglecting  the  principles  of  political  practice,  so 
grouped  and  correlated  and  generalized  them  as  to 
present  a  comprehensive  political  science  — Staatslehre 
as  well  as  Politik.  It  is  true  that  the  Aristotelian 
Politics  furnished  many,  if  not  most,  of  the  categories 
which  constituted  the  framework  of  Bodin's  political 
science ;  but  it  is  equally  true  that  those  concepts  on 
which  the  French  philosopher  laid  most  stress  and 
which  gave  its  peculiar  character  to  his  system  — 
sovereignty,  the  distinction  of  state  from  government, 
the  influence  of  climate  —  were  either  slighted  or 
wholly  unknown  in  the  system  of  the  Greek.  More- 
over, the  claim  of  originality  and  independence  for 
Bodin  is  supported  by  the  very  fact  that  the  historical 
method  was  common  to  him  and  Aristotle.  For  in 
philosophy  based  on  history,  the  accident  of  chronol- 
ogy must  profoundly  affect  different  systems.  The 
later  writer  has  necessarily  more  history  from  which 
to  generalize.  Nineteen  centuries  separated  Bodin 
from  Aristotle  —  centuries  replete  with  striking  so- 
cial and  political  phenomena.  That  any  of  the 


122  POLITICAL  THEORIES 

Greek's  principles  could  be  approved  by  the  French- 
man is  a  great  tribute  to  the  former's  genius ;  that 
so  many  were  modified  or  rejected  is  the  surest  basis 
for  the  renown  of  the  latter.  The  influences  which 
are  most  apparent  where  Bodin  diverges  from  Aris- 
totle are  those  of  Roman  history  and  law,  Jewish 
tradition  and  recent  European  history. 

In  respect  to  the  relation  between  politics  on  the 
one  hand  and  ethics  and  theology  on  the  other,  Bodin 
corrects  the  Machiavellian  conception  of  a  total  sev- 
erance, and  takes  the  middle  ground  in  which  here, 
as  elsewhere,  he  believes  truth  is  to  be  found.  God 
and  justice  he  assumes  to  be  facts  controlling  political 
life  and  institutions,  but  he  does  not  investigate 
closely  the  manner  and  extent  of  the  control.  A 
belief  in  a  supernatural  being  he  thinks  important 
for  the  welfare  of  a  state,  though  the  details  of  the 
creed  do  not  impress  him  as  of  great  importance; 
and  there  is  something  Machiavellian  in  his  dictum 
that  as  between  superstition  and  atheism,  the  former 
is  preferable  from  the  standpoint  of  political  science.1 
Justice  and  the  moral  law  also  are  assumed  by  Bodin 
as  fundamental  to  political  science,  and  he  works  out 
an  elaborate  scheme  of  harmonic  proportion  which 
he  thinks  more  accurately  represents  the  principle  of 
justice  than  do  the  geometric  and  arithmetic  propor- 
tions set  forth  by  Aristotle.2  But  this  part  of  Bodin's 

1  Nam  superstitio  quantaque  fuerit  homines  tamen  in  legum  ac 
magistratuum  metu  et  in  mutuis  vitse  officiis  continet;   impietas 
autem  adversus  numina  ornnem  ex  animo  peccandi  metum  penitus 
evellit.  —  De  Republica,  IV,  vii. 

2  Ibid.,  VI,  vi. 


BODIN' S  LATER  INFLUENCE  1? 

philosophy  is  accidental  rather  than  essential.  Hi 
real  work,  admirably  accomplished,  is  to  set  the  theory 
of  the  state  and  the  science  of  government  once  more 
where  Aristotle  had  placed  it,  on  a  foundation  of  his- 
tory and  observation,  and  by  the  side  of,  not  depend- 
ent from,  the  sciences  of  ethics  and  theology.  It  is 
no  discredit  to  the  French  philosopher  that  after  his 
death  his  method  of  treating  politics  suffered  nearly 
two  centuries  of  eclipse,  through  the  prevalence  of 
the  a  priori  and  deductive  systems  introduced  by 
Grotius  and  Hobbes.  In  Montesquieu  Bodin  found 
a  worthy  successor,  and  the  dominant  philosophy 
of  the  later  nineteenth  century  placed  itself  once 
more  within  the  lines  which  were  marked  out  by 
these  two. 

SELECT  REFERENCES 

BAUDRILLART,  J.  Bodin  et  son  temp&-  BLTJNTSCHLI,  Oe- 
schichte  der  neueren  Staatswissenschaft,  pp.  26-56.  BODIN,  De 
Republica  Libri  Sex  (Francofurti,  1641) ;  Les  six  livres  de  la 
republique  (Paris,  1599) ;  The  Six  Books  of  a  Comraonweale, 
trans,  by  Richard  Knolles ;  Methodns  ad  facilem  Historiarum 
Cognitionem  (ed.  1583).  FRANCK,  Reformateurs  et  publicistes, 
Moyen  Age,  pp.  395  et  seq.  HALLAM,  Literature  of  Europe, 
Vol.  II,  pp.  204-230.  JANET,  Histoire,  Vol.  II,  pp.  114-127. 
HANCKE,  Bodin,  eine  Studie  iiber  den  Begriff  der  Souveranetat. 


CHAPTER  IV 

CATHOLIC    CONTROVERSIALISTS   AND   JURISTS 

1.    The  Catholic  Reformation 

BODIN'S  political  philosophy  had  its  source  and 
inspiration  in  social  and  intellectual  radicalism.  Re- 
jection of  the  influences  that  had  determined  medi- 
aeval institutions  and  beliefs  was  the  substantial 
characteristic  of  his  spirit  in  politics,  as  it  was  the 
characteristic  of  Protestantism  in  creed  and  worship. 
For  the  maintenance  of  medievalism  in  political 
thought,  as  against  the  appeal  to  primitive  Christian- 
ity by  the  Protestants  and  the  rationalistic  spirit  of 
Bodin,  we  must  turn  to  the  great  body  of  able  de- 
baters who  sustained  the  cause  of  the  old  church 
against  the  innovators  and  upheld  the  Papacy  as  the 
symbol  and  guarantee  of  conservatism. 

As  has  been  stated  above,1  the  progress  of  the 
Protestant  revolt  led  eventually  to  the  summons  of  a 
general  council.  In  both  its  convocation  and  its  pro- 
ceedings the  Council  of  Trent  reflected  unmistakably 
the  political  and  ecclesiastical  confusion  that  sur- 
rounded it.  The  expediency  of  holding  a  council,  the 
place  where  it  should  meet,  the  form  and  order  of 
procedure,  the  amount  of  recognition,  if  any,  to  be 
accorded  to  the  adherents  of  the  reformed  creeds  — 

ip.  6. 

124 


THE  COUNCIL  OF  TRENT  125 

these  and  many  other  questions  involved  the  initiation 
of  the  council  in  a  tangle  of  diplomacy  that  affected 
every  court  and  every  diocese  in  Europe..  The  funda- 
mental issues  about  which  all  the  complications  cen- 
tred were  those  that  had  been  familiar  to  the  Middle 
Age  —  whether  Pope  or  council  was  supreme  in  the 
church,  and  what  line  divided  spiritual  from  secular 
power.  Strong  as  may  have  been  the  inclination  of 
Pope  Paul  III  toward  such  doctrinal  and  ecclesiastical 
reforms  as  should  heal  the  schism  in  the  church,  he 
omitted  no  precaution  against  such  a  constitutional 
outcome  as  that  of  the  Council  of  Constance.1  The 
papal  policy  was  triumphant  in  this  respect,  and 
both  the  procedure  adopted  and  the  decrees  enacted 
at  Trent  left  the  supremacy  of  the  Pope  practically 
intact.2  As  to  the  relation  between  spiritual  and 
secular  jurisdiction,  the  council  made  no  specific  pro- 
nouncement, but  incidentally  to  the  decrees  on  refor- 
mation many  evidences  were  found  by  the  lynx-eyed 
secular  lawyers  of  a  tendency  to  encroach  on  a 
domain  not  ecclesiastical,8  so  that  France  never 
formally  accepted  the  work  of  the  council. 

The  purpose  of  those  who  promoted  the  conciliar 
movement  had  been  twofold :  first,  to  secure  from 
a  generally  recognized  authority  a  definition  of 
doctrine  on  the  points  at  which  the  most  violent 

1  See  Political  Theories,  Ancient  and  Mediceval,  p.  258. 

2  Cf.  Session  XXV,  Decree  on  Reformation,  chap.  xxi.    In  Water- 
worth,  Decrees  of  the  Council  of  Trent,  p.  277. 

8  E.g.  the  rule  prohibiting  duelling  prescribes  as  a  penalty  of  viola- 
tion the  confiscation  of  the  offender's  property.  See  Waterworth, 
p.  274.  Cf.  Bungener,  Histoire  du  Concile  de  Trente,  II,  389  et  seq. 


126  POLITICAL  THEORIES 

attacks  of  the  Reformers  had  been  made,  and  thus  to 
bring  about  a  formal  condemnation  of  the  Protestants ; 
and  second,  to  abolish  those  abuses  in  administration 
and  discipline  which  had  furnished  so  strong  a  justifi- 
cation for  the  reforming  movement.  In  accordance 
with  this  scheme  the  acts  of  the  Council  of  Trent 
dealt  systematically  on  the  one  hand  with  doc- 
trine and  on  the  other  with  discipline,  and  the 
legislation  as  a  whole  constituted  a  code  which 
gave  a  great  access  of  strength  and  unity  to  the 
old  church  in  its  conflict  with  Protestantism.  In 
the  matter  of  doctrine,  the  chief  points  insisted 
upon  by  the  Protestants  were  explicitly  declared 
heretical,  and  the  ancient  but  ill-defined  views  on 
which  the  council  took  its  stand  were  cast  into  the 
form  of  precise  and  rigid  dogmas.  In  the  matter  of 
discipline,  the  inveterate  practices  of  a  corrupt  and 
simoniacal  nature  connected  with  the  bestowal  and 
holding  of  benefices  were  abolished,  a  high  degree  of 
moral  and  intellectual  fitness  was  prescribed  for  the 
clergy,  and  a  host  of  detailed  injunctions  imposed 
upon  the  bishops  the  necessity  of  a  strict  personal 
regulation  of  the  religious  and  moral  affairs  of  their 
dioceses.  Not  the  least  significant  article  of  the 
legislation  was  that  requiring  the  establishment  of 
seminaries  for  the  education  of  priests.1  The  igno- 
rance and  incompetence  of  the  inferior  clergy  had 
been  a  conspicuous  item  in  the  charges  brought  by 
the  Reformers  against  the  old  order ;  and  now  that 

1  Session  XXIII,  Decree  on  Reformation,  chap,  xviii.     Water- 
worth,  p.  187. 


THE  JESUITS  127 

the  church  was  fully  committed  to  a  lasting  conflict 
with  those  whom  it  denounced  as  heretics  and  schis- 
matics, it  was  particularly  important  that  the  ortho- 
dox intellectual  equipment  of  the  whole  hierarchy 
should  be  insured. 

The  reformation  enacted  by  the  Council  of  Trent 
was  carried  vigorously  into  effect  by  the  papal  curia, 
with  great  tonic  effect  on  the  whole  ecclesiastical 
system.  A  noticeable  check  to  the  spread  of  Prot- 
estantism characterized  the  decades  succeeding  the 
council.  The  renewed  strength  of  the  Catholics  was 
the  resultant,  of  course,  of  many  causes  in  addition 
to  the  work  of  the  council.  The  only  one  of  these 
which  it  is  important  to  notice  here  is  the  activity 
and  influence  of  the  Jesuits.  This  order,  founded 
just  before  the  first  meeting  of  the  Council  of  Trent, 
began  about  the  time  of  the  final  meeting l  to  make 
itself  clearly  manifest  in  the  affairs  of  Europe. 
Whatever  may  be  said  as  to  the  fundamental  prin- 
ciples and  the  practical  working  system  of  the 
Society  of  Jesus,  there  is  no  room  to  doubt  its  as- 
tonishing efficiency  in  sustaining  the  cause  of  the 
Roman  Church  against  the  Protestant  heretics.  It 
can  hardly  be  a  mere  accident  that  in  the  heated 
controversies  centring  about  the  religious  wars  in 
the  latter  half  of  the  sixteenth  and  the  first  half  of 
the  seventeenth  century  the  ablest  and  most  dreaded 
protagonists  of  the  Catholic  cause  were  Jesuits.2 

1  The  first  meeting  was  1545-1547;  the  last,  1562-1563. 

2  For  an  excellent   monograph   on  this   subject,  see  Krebs,  Die 
politische  Publizistik  der  Jesuiten  und  ihrer  Gegner  in  den  letzten  Jahr- 


128  POLITICAL  THEORIES 

There  must  have  been  in  the  system  of  the  society 
something  that  either  specially  developed  or  specially 
attracted  the  ability  that  the  cause  demanded.  A 
view  of  political  theory  during  this  period  requires 
some  attention  to  the  doctrines  put  forth  from  the 
side  of  the  reformed  Catholic  organization,  and  in 
considering  these  the  writings  of  prominent  Jesuits 
occupy  the  field  almost  exclusively.  Their  treatment 
of  popular  sovereignty  and  tyrannicide  has  already 
been  referred  to,  and  their  most  radical  yet  philosoph- 
ical representative  as  to  these  questions,  Mariana,  has 
been  considered.  We  have  now  to  examine  other 
aspects  of  their  philosophy. 

2.   Bellarmin  and  Barclay 

Of  the  controversialists  who  sustained  the  Catholic 
and  papal  cause  in  the  period  of  the  Catholic  reforma- 
tion, perhaps  the  ablest  and  certainly  the  most  influ- 
ential was  the  Jesuit  cardinal,  Robert  Bellarmin 
(1542-1621).  His  Disputations  covered  systemati- 
cally all  the  prominent  issues  of  the  time,  theological, 
ecclesiastical  and  political,  and  constituted  a  formi- 
dable arsenal  of  arguments,  which  was  freely  drawn 
upon  by  the  lesser  supporters  of  the  same  cause.  In 
this  work  he  sets  forth  at  some  length  his  theory  in 
reference  to  forms  of  government  and  sustains  the  fol- 
lowing propositions :  first,  that  of  the  simple  forms, 
the  most  excellent  is  monarchy ;  second,  that  of  mon- 
archies, an  organization  in  which  the  authority  of  the 

zehnten  vor  Ausbruch  des  dreissigjahrigen  Krieges.  Hallesche  Abhand- 
lungen  zur  neueren  Geschichte,  Heft  25  (1890). 


PAPAL  POWER  IN  TEMPORALS  129 

monarch  is  modified  and  limited  by  organs  represent- 
ing the  aristocratic  and  democratic  systems,  is  prefer- 
able to  simple  absolute  monarchy ;  and  third,  that 
regarded  in  the  abstract  and  independently  of  all 
particular  circumstances,  the  simple  monarchy  is  with- 
out qualification  the  best.  The  "  mixed  form,"  to 
which  he  attributes  relative  excellence,  owes  its  utility 
merely  to  the  fact  of  the  corruption  of  human  nature. 
Disregarding  this  fact,  monarchy  pure  and  simple 
must  be  given  the  first  place.  With  these  ideas 
Bellarmin  makes  a  rather  vigorous  attack  on  Calvin 
for  the  preference  given  by  the  latter  to  aristocracy.1 
The  whole  purpose  of  Bellarmin' s  discussion  of  the 
forms  of  government  is  to  reach  a  conclusion  as  to 
that  which  is  best  for  the  church.  His  conclusion  is 
of  course  that  the  church  should  be  monarchically 
governed,  and  that  divine  sanction  of  the  papal  mon- 
archy was  directly  given  in  the  establishment  of  the 
Petrine  authority  and  succession  at  Rome.  Like  all 
the  Jesuits,  Bellarmin  sustains  in  the  most  unquali- 
fied way  the  ecclesiastical  sovereignty  of  the  Pope. 
But  more  significant  is  his  doctrine  as  to  the  rela- 
tion of  the  spiritual  to  the  secular  authority.  In  his 
Disputations  he  lays  it  down  with  the  utmost  distinct- 
ness that  the  Pope  has  by  virtue  of  his  office  no 
direct  authority  whatever  in  secular  affairs,2  and 
that  it  is  no  function  of  his  to  depose  monarchs  or 
to  make  or  abrogate  laws.  Yet  he  holds  that  each 
of  these  acts  and  others  even  more  sweeping  may  be 

1  Bellarmin,  Opera,  Tome  I,  Cont.  Ill,  Lib.  I,  cap.  1-4. 

2  Opera,  Tome  I,  Cont.  Ill,  Lib.  V. 

VOL.  II.  —  K 

:: 


130  POLITICAL  THEORIES 

performed  by  the  Pope,  and  must  be  performed  by 
him,  when  the  salvation  of  souls  is  concerned.  This 
conclusion  and  the  reasoning  by  which  it  is  sustained 
are  identical  in  all  respects  with  that  of  the  more 
moderate  supporters  of  the  Papacy  in  the  controver- 
sies of  the  Middle  Ages. 

Bellarmin  indeed  made  no  contribution  to  the 
philosophy  of  this  matter,  although  the  support 
which  he  gave  to  the  revived  mediaeval  theory  caused 
a  great  sensation  in  both  Protestant  and  Catholic 
circles.  Indeed,  his  views  as  here  set  forth  were  not 
acceptable  to  the  papal  court  itself.  His  elaborate 
and  explicit  denial  to  the  Pope  of  direct  authority 
in  temporal  affairs  excited  suspicion  at  Rome,  and 
Pope  Gregory  XIII  put  his  work  on  the  Index.  In 
a  later  work,  the  Treatise  on  the  Power  of  the  Pope 
in  Temporal  Affairs?  Bellarmin' s  distinction  between 
direct  and  indirect  authority  in  seculars  is  left  aside 
and  all  stress  is  laid  on  the  demonstration  that, 
because  popes,  councils  and  theologians  without  num- 
ber have  ascribed  temporal  authority  to  the  Papal 
See,  any  denial  of  such  authority  is  out  of  the  ques- 
tion, and  is  inconsistent  with  orthodox  Christianity. 

This  later  work  of  Bellarmin  was  written  in 
response  to  the  teaching  of  William  Barclay,  a  Scotch 
refugee  in  France,  who,  though  a  devout  Catholic, 
was  not  a  Jesuit.  Barclay's  attitude  was  that  of 
antagonism  both  to  the  anti-monarchic  doctrines  of 
Protestantism  and  Jesuits  and  to  the  exaggerated 

1  Tractatus  de  Potestate  Summi  Ponlificis  in  Rebus  Temporalibus. 
Opera,  Tome  V. 


BARCLAY  ON  DIVINE  RIGHT  131 

pro-papal  doctrine  of  the  latter.1  He  represented  the 
discontent  felt  by  many  good  Catholics  with  the 
assaults  directed  by  the  Jesuits  against  the  supporters 
of  royal  authority.  To  him  the  theory  of  popular 
sovereignty  when  sustained  by  the  Jesuits  was  quite 
as  dangerous  as  the  same  theory  in  the  hands  of  the 
Calvinists.  His  positive  doctrine  was  that  of  secular 
monarchy  by  divine  right.  *  His  theory  presented,  how- 
ever, nothing  novel.  The  controversy  between  him 
and  Bellarmin  reproduced  almost  exactly,  save  for 
the  later  precedents  and  authorities  adduced,  the 
arguments  employed  in  behalf  of  royal  and  papal 
supremacy  respectively  in  the  latter  centuries  of 
the  Middle  Ages.2  But  the  prestige  of  the  Papacy  in 
temporal  politics  had  dwindled  almost  to  insignifi- 
cance by  1600,  while  the  power  of  the  national 
monarchs  had  enormously  expanded.  Hence,  with 
all  the  air  of  reality  which  was  given  to  the  preten- 
sions of  papal  authority  by  the  excommunication  of 
Queen  Elizabeth  and  Henry  of  Navarre,  the  contro- 
versy carried  on  with  such  vehemence  and  learning 
by  Barclay  and  Bellarmin  produced  the  impression  of 
a  mere  academic  debate,  with  but  slight  relation  to 
actualities. 

The  question  on  which  controversy  raged  at  this 
time  with  the  intensity  of  unmistakable  reality  was 
that  concerning  the  right  of  tyrannicide.  The  Gun- 

1  Barclay's  chief  works  were  as  follows :  De  Regno  et  Regali  Potes- 
tate  adversus  Buchananum,  Brutum,  Boucherium  et  reliquos  Monarcho- 
machos  ;  and  De  Potestate  Papce.  The  latter  is  in  Goldast,  MonarcJiia, 
III. 

3  Political  Theories,  Ancient  and  Mediaeval,  pp.  176  et  seq.,  215  et  seq. 


132  POLITICAL  THEORIES 

powder  Plot  of  1605  and  the  assassination  of  Henry 
IV  of  France  in  1610  were  attributed  to  the  teach- 
ings of  the  Jesuits  by  their  adversaries.  On  account 
of  the  odium  excited  against  the  Society  of  Jesus  the 
provincial  assembly  of  the  order  at  Paris  formally 
repudiated  Mariana's  De  Rege,  in  which  the  right 
of  tyrannicide  was  so  boldly  propounded.1  In  the 
extreme  and  violent  practical  development  of  anti- 
monarchic  doctrine  Bellarmin  had  of  course  no  part, 
though  his  relative  depreciation  of  royalty  afforded 
some  measure  of  support  to  the  projects  of  the  fanat- 
ics. Barclay,  on  the  other  hand,  found  in  the  like- 
lihood of  such  subversive  movements  as  actually 
occurred  a  strong  support  for  his  demonstration  that 
the  divine  right  of  royalty  was  the  sole  effective  basis 
for  social  and  political  order.2 

3.    Spanish  Jurists  and  Moralists 

The  nearest  that  Spain  ever  came  to  making  im- 
portant contributions  to  political  philosophy  was  in 
the  sixteenth  century,  through  a  somewhat  remark- 
able group  of  theologians  who  worked  in  the  field 
of  jurisprudence.  This  period  has  been  called  the 
Golden  Age  of  European  jurisprudence,  and  it  was 
characterized  by  the  innovating  activity  of  such  influ- 
ential thinkers  as  Cujas  in  France  and  Bolognetus  in 

1  This  was  in  1606.     See  Krebs,  op.  cit.,  p.  49. 

2  Barclay's  work  against  the  monarchomachs  was  written  with 
particular  reference  to  Scottish  and  French  conditions  before  1600. 
After  the  assassination  of  Henry  IV  Blackwood,  another  Gallicized 
Scot,  wrote  in  the  same  strain  as  Barclay.     See  Figgis,  The  Divine 
Right  of  Kings,  pp.  130  et  seq. 


SPANISH  JURISPRUDENCE  133 

Italy,  through  whom  the  spirit  of  humanism  was 
injected  into  the  theory  and  practice  of  the  Roman 
law.  Spanish  thought  reflected  but  little,  however, 
of  the  humanist  influence,  and  seems  to  have  been  a 
product  chiefly  of  that  great  expansion  of  dominion 
which  accompanied  the  career  of  Charles  V  and  the 
discoveries  and  conquests  in  the  New  World  and  the 
Indies.  The  list  of  distinguished  names  in  the  ju- 
ristic literature  of  Spain  during  this  period  includes 
Vasquez,  Soto,  Victoria,  Covarruvius,  Molina,  Ayala 
and  Suarez,1  of  whom  all  but  Ayala  were  primarily 
theologians.  From  the  standpoint  of  political  phi- 
losophy their  works  are  of  interest  principally  for  the 
discussion  of  those  broad  doctrines  of  public  law  that 
lie  about  the  boundaries  of  ethics  and  politics.  With 
the  detailed  commentaries  on  private  law  we  have  in 
this  place  no  concern. 

It  was  in  the  treatises  of  these  writers  that  sys- 
tematic moral  philosophy  began  to  take  form  out  of 
the  mass  of  casuistry  that  had  accumulated  about 
the  practice  of  the  confessional.  The  law  of  nature 
assumed  the  character  in  which  it  became  so  widely 
influential  through  the  work  of  Grotius.  The  law  of 
nations  (ius  gentium),  also,  in  the  hands  of  the 
Spaniards,  began  to  take  on  a  modern  aspect. 
Far-reaching  questions  of  political  justice  and  ex- 
pediency were  brought  to  the  front  by  the  contact 
with  new  lands  and  new  peoples.  The  right  of 

1  For  particulars  about  these  men  see  Hallani,  European  Literature, 
Part  II,  chap,  iv,  and  Kaltenborn,  Die  Vorlaufer  des  Hugo  Grotius, 
cap.  vi. 


134  POLITICAL  THEORIES 

the  Europeans  to  seize  the  lands  and  other  posses- 
sions of  the  Indians  and  to  subject  their  persons 
to  slavery  was  taken  up  for  debate,  bringing  in  its 
train  a  great  number  of  minor  questions  in  respect  to 
just  cause  and  just  conduct  of  war.  Soto  and  Vic- 
toria elaborately  refuted  the  doctrine  that  the  Indians, 
being  infidels,  were  without  rights  as  against  Chris- 
tian nations,  and  Ayala,  who  served  with  the  Duke 
of  Parma  in  the  Netherlands,  sketched  in  rather  full 
outline  a  theory  of  the  rights  of  the  war.1 

The  foundation  of  the  philosophy  which  is  set 
forth  in  all  these  writers  is  the  theory  of  justice,  of 
rights  and  of  law  that  was  formulated  by  Thomas 
Aquinas,  from  whom  are  taken  by  all  alike  the  defi- 
nitions and  classifications  of  law  and  the  important 
distinctions  of  ins  naturce  and  ius  gentium.  The 
method  and  style  also  of  Aquinas  are  followed  by  the 
Spanish  jurists,  who  thus  both  by  the  content  and 
by  the  form  of  their  sys terns  prolonged  the  record 
of  scholasticism.  Yet  through  them  chiefly  it  was 
that  the  large  fraction  of  the  civilized  world  which 
clung  to  the  Roman  church  became  familiar  with 
the  ideas  which  were  to  be  for  centuries  dominant 
in  political  theory.  A  supreme  and  immutable  law 
of  nature,  changeless  by  God  himself,  a  ius  gentium, 
through  which  private  property  and  slavery  were 
introduced,  a  state  of  nature  antecedent  to  the  state 
of  corruption,  and  thus  affording  the  type  of  per- 
fection for  all  actual  societies,  —  these  constituted 
the  first  principles  common  to  all  the  systems.  With- 

1  For  the  heads  of  chapters  of  his  work,  see  Hallam,  he.  cit. 


SUAREZ  AND  AQUINAS  135 

out  regard  to  the  various  shades  of  distinction  among 
the  different  philosophers  who  sustained  and  de- 
veloped these  principles,  we  may  devote  some  specific 
attention  to  the  work  of  that  one  of  them  who  by 
general  consent  was  the  equal,  if  not  the  superior,  of 
all  the  rest  in  intellectual  and  moral  strength  and 
casuistical  subtlety.  This  was  Francisco  Suarez,  the 
Spanish  Jesuit. 

4.    Suarez   on  Law 

Of  the  voluminous  product  of  Suarez' s  literary 
activity  his  Treatise  on  Law  and  God  the  Legislator  l 
is  all  that  need  be  studied  to  understand  his  political 
philosophy.  This  work,  while  primarily  devoted  to 
jurisprudence,  expresses  nevertheless  in  its  plan  and 
scope,  as  well  as  in  its  details,  the  attitude  of  the  old 
church  in  respect  to  the  interrelationship  of  theology, 
ethics  and  politics,  and  the  broad  principles  of  con- 
servatism in  each  of  these  fields.  In  spirit  and  in 
method  the  philosophy  of  Suarez  is  that  of  the 
Scholastics.  He  assumes  consciously  no  more  inde- 
pendent task  than  that  of  correlating  and  interpreting 
the  doctrines  which  had  by  authority  been  made  part 
of  the  Christian  creed.  His  intellectual  endowment 
and  sympathies  were  very  similar  to  those  of  Thomas 
Aquinas,  and  the  Treatise  on  Law  is  essentially  a 
development  and  exposition  of  the  sections  on  law  and 
rights  in  St.  Thomas's  Summa  Theologica.  Where 
Aquinas  is  clear,  Suarez  has  no  task  but  to  repeat  and 

1  Tractatus  de  Legibus  ac  Deo  Legislator,  published  in  1613.  I 
have  used  a  new  edition  published  at  Naples,  1872. 


136  POLITICAL  THEOKIES 

further  illustrate  his  dicta ;  where  Aquinas  is  unclear 
or  incomplete,  it  is  Suarez's  aim  to  clarify  and  supple- 
ment; where  Aquinas  takes  an  untenable  position, 
Suarez  reverently  and  with  the  subtlest  distinctions 
and  discriminations  proves  that  the  master  must  have 
meant  something  different  from  what  he  said. 

However  unsatisfactory  and  unfruitful  this  subser- 
vience to  authority  may  appear  to  the  modern  mind, 
the  system  which  is  presented  by  the  work  of  Suarez 
as  a  whole  is  not  less  dignified  —  and  who  shall  say 
less  truthful  ?  —  than  the  systems  of  Hegel  and 
Spencer,  which  have  been  so  much  more  acceptable 
to  a  rationalistic  age.  The  Treatise  on  Law  has  for 
its  basis  the  broad  conception  that  all  moral  beings 
—  that  is,  all  beings  endowed  with  reason  and  free 
will  —  are  determined  in  all  their  relations  by  law. 
These  relations  may  be  grouped  as  theological,  ethical 
and  political,  and  these  groups  have  a  unity  in  the 
nature  of  law  itself.  In  defining  law  in  its  most 
general  sense,  Suarez  follows  Aquinas  closely,  though 
with  some  modification :  it  is  "  a  just  and  permanent 
precept,  applying  to  a  community  and  sufficiently 
promulgated."  1  Emphasis  is  laid,  as  by  St.  Thomas 
and  Aegidius  Romanus,2  on  the  volitional  element  in 
the  concept.  An  act  of  will  is  essential,  though  a 
dictate  of  right  reason  is  no  less  indispensable.  The 
classes  of  law  also  are  those  of  St.  Thomas  —  eter- 
nal, natural,  human  and  divine.  The  resources  of 

1  Lex  est  commune  praeceptum,  iustum  ac  stabile,  sufficienter  pro- 
mulgatum.  —  Tractatus  de  Legibus,  Lib.  I,  cap.  xii,  sec.  2. 

2  See  Political  Theories,  Ancient  and  Mediaeval,  pp.  193-194,  211. 


THE  LAW  OF  NATURE  137 

Suarez's  dialectic  are  severely  taxed  to  adjust  all  the 
classes  to  the  requirements  of  his  general  definition ; 1 
but  the  scholastic  method  and  terminology,  in  which 
he  is  an  adept,  enable  him  to  escape  from  all  the 
intricate  entanglements  in  which  he  finds  himself. 
The  ten  books  of  his  treatise  deal  with  all  the  va- 
rieties of  law,  with  interpretation,  custom  and  privi- 
lege, with  Canon  law  and  the  law  of  the  Old  and 
the  New  Dispensation.  For  our  purpose  it  is  impor- 
tant to  consider  with  some  care  only  his  treatment  of 
natural  law,  which  is  the  basis  of  ethics,  and  human 
law,  which  embodies  the  chief  principles  of  politics. 

To  the  theory  of  the  law  of  nature  (lex  naturalis  or 
ius  naturale 2)  Suarez  devotes  much  attention,  present- 
ing the  doctrine  on  which  theology  was  to  stand  in 
the  rising  debate  over  the  basis  of  morality.  Natural 
law  is  that  law  implanted  in  the  human  soul  through 
which  right  is  distinguished  from  wrong.  Its  source 
is  God  the  Creator,  and  its  end  is  the  good  of  the 
creature.  Against  the  doctrine  that  the  law  of 
nature  is  indicative  merely,  showing  but  not  enjoining 
what  is  right,  Suarez  maintains  that  it  is  both  indica- 

1  For  example,  see  the  elaborate  word-spinning  through  which 
the   lex  ceterna   is  proved  to  be  really  law.  —  II,  i-iv.     His  prime 
resource  is  usually  authority.    Thus  for  the  designation  of  the  eternal 
law  as  lex,  "  sufficit  usus  sanctorum  et  sapientum  in  tali  materia."  —  II, 
i,  4.     And  again,  for  his  assumption  that  the  lex  naturalis  is  true  lex, 
he  rests  on  the  "  communi  sententia  non  solum  doctorum  sed  etiam 
canonum  et  legum."  — II,  v,  3.     Cf.  also  II,  vi,  5:   "Lex  naturalis 
est  propria  lex ;  ita  enim  de  ilia  loquuntur  et  sentiunt  omnes  patres, 
theologi  et  philosophi." 

2  He  distinguishes  very  precisely  between  lex  and  ius,  but  concedes 
that  usage  has  made  the  employment  of  the  latter  in  the  sense  of  the 
former  in  many  cases  inevitable.     See  I,  ii,  esp.  sec.  5. 


138  POLITICAL  THEOKIES 

tive  and  imperative  —  that  it  embodies  not  only  a 
judgment  of  human  reason,  but  also  a  command  of 
God ;  in  other  words,  it  is  law  proper.1  Conceding  that 
lying  would  be  wrong  whether  God  prohibited  it  or 
not,  Suarez  holds  that  in  fact  God  has  prohibited  it 
—  that  his  command  and  the  judgment  of  human 
reason  in  the  light  of  nature  have  always  coincided 
as  to  what  was  right  and  what  was  wrong  in  conduct, 
and  that,  therefore,  natural  law  is  properly  divine 
law,  with  God  as  the  lawmaker.2 

This  body  of  law  embraces  various  classes  of 
principles  and  precepts,  of  which  the  most  general 
and  fundamental  are  present  immediately  to  the  con- 
sciousness of  every  man  and  cannot  be  ignored,  while 
others,  derived  from  these  by  intellectual  processes, 
may  never  be  known  to  men  of  inferior  capacity.3 
In  the  former  category  Suarez  places  the  Golden 
Rule  and  the  injunctions  of  the  Decalogue ;  in  the 
latter  the  prohibition  of  fornication,  of  usury  and  of 
unjust  price.  But  however  its  precepts  are  classified 
and  to  whatever  extent  they  are  apprehended,  the  law 
of  nature  as  a  whole  constitutes  a  code  of  conduct  which 
is  the  same  for  all  times,  for  all  places  and  for  all  con- 
ditions of  men,  and  which,  as  the  command  of  God, 
cannot  be  deviated  from  save  at  the  peril  of  eternal 

1  n,  vi,  4. 

2  The  question  debated  at  great  length  by  Ockam  —  whether  it  is 
possible  for  God  to  command  what  is  not  in  accord  with  right  reason, 
e.g.  to  remove  the  negatives  from  the  Decalogue  —  is  discussed   in 
II,  vi,  12-15,  and  is  answered  by  a  very  striking  doctrine  ascribed  to 
Caietanus. 

8  ...  ignorari  possunt  invincibiliter,  praesertim  a  plebe.  —  II, 
viii,  3. 


THE  LAW  OF  NATURE  139 

damnation,  even  to  those  who  know  nothing  of  Reve- 
lation.1 This  law,  moreover,  is  immutable;  no  one 
of  its  precepts  may  be  modified  or  dispensed  from  by 
any  human  power,  even  the  papal  (etiamsi  pontificia), 
and  no  injunction  of  human  law,  whether  ius  civile  or 
ius  gentium,  has  any  force  to  modify  the  obligation  of 
the  law  of  nature. 

This  conception  of  an  inflexible  code,  willed  by  God, 
manifested  through  the  light  of  nature  and  interpreted 
by  reason,  exhibits  the  completed  development  of  the 
idea  on  which  Plato  placed  himself  in  his  ethical 
system.2  The  rigidity  of  Suarez's  system,  as  expressed 
in  its  abstract  principles,  is  very  materially  modified, 
however,  in  his  treatment  of  questions  of  a  more 
practical  character.  While  he  insists  that  the  pre- 
cepts of  natural  law  are  in  themselves  immutable,  yet 
he  admits  that  modifications  relating  to  the  subject- 
matter  (materid)  to  which  the  precepts  apply  may 
remove  their  binding  force.  Thus  the  obligation  to 
return  a  thing  held  on  deposit  ceases  when  the  cir- 
cumstances have  become  such  that  the  return  would 
bring  danger  to  the  state.  Again,  though  God  him- 
self may  not,  strictly  speaking,  grant  dispensation 
from  the  precepts  of  the  natural  law,  he  may,  by 
virtue  of  his  proprietorship  (dominium)  of  all  created 
things  remove  the  subject-matter  from  the  field  of 
the  law's  operation.  It  is  by  this  principle  that  the 
command  to  Abraham  to  slay  Isaac  is  reconciled  with 

1  Dicimus  negari  non  posse  secundum  fidem  quin  transgressio  legis 
naturalis  sufficiat  ad  seternam  damnationem,  etiamsi  omnis  super- 
naturalis  lex  ignoretur.  —  II,  ix,  2. 

2  Cf.  Political  Theories,  Ancient  and  Mediaeval,  p.  27. 


140  POLITICAL  THEORIES 

the  prohibition  of  the  Decalogue  :  the  killing  of  Isaac 
would  have  been  an  exercise  of  God's  proprietary 
right  over  his  creature,  not  a  violation  of  natural  law. 
On  similar  grounds  the  dispensation  from  the  keeping 
of  vows  and  oaths  is  explained  as  not  involving  any 
infraction  of  morality.  In  general,  despite  the  rigor- 
ous and  exact  form  in  which  the  law  of  nature  is  cast 
in  the  abstract  conceptions  of  its  content,  the  dis- 
tinctions and  qualifications  which  are  later  introduced 
bring  the  moral  code  into  practical  harmony  with 
those  systems  which  claim  an  origin  not  in  the  will  of 
an  omniscient  and  all-wise  supernatural  being,  but 
merely  in  the  conclusions  of  human  reason. 

The  adaptation  of  the  strict  law  to  the  practical 
life  of  men  by  Suarez  is  greatly  facilitated  by  his 
treatment  of  ius  gentium.  This  law  of  nations  he 
sets  in  sharp  contrast  to  the  law  of  nature,  and  thus 
secures  a  field  to  which  he  can  assign  any  principles 
that  are  hard  to  fit  into  the  latter  system.  Private 
property  and  slavery,  for  example,  he  makes  no 
attempt  to  explain  as  in  accord  with  natural  law. 
Community  of  goods  and  liberty  are  "natural,"  by 
consent  of  all  the  authorities,  and  hence  the  almost 
universal  institutions  inconsistent  with  these  he  com- 
fortably disposes  of  by  classifying  under  the  ius  gen- 
tium.1 The  distinction  between  ius  naturale  and  ius 
gentium  is  primarily  that  between  what  is  morally 
necessary  and  what  is  socially  expedient.2  The  pre- 
cepts of  the  law  of  nature  are  inevitable  deductions 

1  II,  viii,  4. 

2  This  distinction  is  worked  out  at  great  length  in  II,  xvii-xx. 


THE  LAW  OF  NATIONS  141 

from  nature  ;  those  of  the  law  of  nations  are  merely 
the  concurrent  judgments  of  all  or  nearly  all  peoples. 
The  former  are  divine  in  origin  ;  the  latter  are  human. 
To  disobey  the  former  is  wrong  always  and  every- 
where ;  to  disobey  the  latter  is  wrong  only  when  and 
where  they  have  been  incorporated  in  the  institutions 
of  the  land. 

This  insistence  on  the  distinction  between  ius  gen- 
tium and  ius  naturale  was  an  important  element  in  the 
opposition  of  the  theological  to  the  rationalistic  school 
of  jurisprudence  at  this  time.  In  the  latter  the  ten- 
dency was  strong  to  identify  the  two  bodies  of  law, 
giving  to  morality  a  basis  merely  in  the  common 
experience  and  judgment  of  mankind.  But  more 
significant  for  the  history  of  political  theories  is  the 
contribution  of  this  idea  of  the  ius  gentium  to  the 
development  of  the  already  rising  science  of  interna- 
tional law.  Suarez's  elucidation  of  the  content  of  the 
ius  gentium  expresses  very  clearly  the  substance  of  the 
new  body  of  principles.  In  it  he  includes  those  rational 
practices  that  have  arisen  out  of  the  inherent  unity  of 
mankind  that  makes  itself  felt  amid  all  the  diversity 
of  states  and  peoples.1  Here  belong  the  regulation  of 
commerce  and  other  forms  of  intercourse  between 
states,  the  formalities  of  war  and  peace,  all  manner 
of  treaties,  etc.  Though  clinging  characteristically  to 
the  ancient  dogma  that  the  state  is  the  " perfect" 
community,  Suarez  nevertheless  declares,  with  earnest 

1  Humanum  genus,  quantumvis  in  varies  populos  et  regna  divisum, 
semper  habet  aliquam  unitatem  non  solum  specificam  sed  etiam  quasi 
politicam  et  moralein.  —  II,  xix,  5. 


142  POLITICAL  THEORIES 

inconsistency,  that  no  state  is  so  self-sufficing  as  to  be 
free  from  the  need  of  intercourse  with,  other  states  ; 
and  from  this  fact  has  arisen  —  through  custom  (usus), 
however,  and  not  from  nature  —  the  conditions  which 
are  the  basis  of  international  law. 

5.   Suarez  on  Government 

The  theory  of  natural  law  embodies  the  doctrine  of 
Suarez  as  to  the  foundation  of  politics  in  theological 
and  ethical  dogmas.  The  superstructure  of  his  po- 
litical theory  is  reared  in  his  discussion  of  positive 
human  law.1  In  the  power  to  enact  law,  which 
includes  all  the  lesser  powers  of  jurisdiction  and 
administration,  he  sees  the  essential  principle  of  all 
political  institutions,  and  his  demonstration  of  the 
existence  and  rationality  of  this  power  not  only 
embodies  the  doctrine  familiar  to  scholastic  juris- 
prudence, but  also  manifests  the  influence  of  the 
conditions  which  produced  Bodin's  theory  of  sover- 
eignty and  of  monarchy. 

The  initial  question  is  as  to  the  power  of  man  to 
prescribe  rules  of  conduct  —  laws  —  to  man.2  If  all 
men  are  by  nature  free,  how  shall  one  have  authority 
over  another  ?  Suarez  answers,  with  Aristotle  and 
Aquinas,  that  man  is  a  social  being,  that  life  in 
society  is  "  natural "  to  him ;  but  social  life  (com- 

1  Though  in  Suarez's  theory  all  law  is  essentially  "  positive,"  i.e. 
set  by  the  will  of  a  superior,  he  admits,  nevertheless,  the  distinction 
between  that  which  is  made  known  immediately  by  "  nature  "  and  cus- 
tom, and  that  which  is  immediately  prescribed  by  a  definite  being, 
whether  divine  or  human. 

2  Utrum  sit  in  hoininibus  potestas  ad  leges  f erendas.  —  III,  i. 


POPULAR  SOVEREIGNTY  143 

munitas)  necessarily  implies  some  regulating  power, 
and  this  power  must  be  in  human  hands,  because  it 
is  not  "  natural "  for  men  to  be  governed  politically 
by  angels  or  by  God  directly.1  The  doctrine  of 
Augustine  and  Gregory  the  Great,  that  human  gov- 
ernment was  introduced  on  account  of  sin,  Suarez 
thinks  can  be  true  only  as  to  coercive  and  not  as  to 
directive  power ;  for  every  community,  even  that  of 
the  angels,  exhibits  a  gradation  of  its  members, 
at  least  in  respect  to  dignity  and  influence,  and  this 
gradation  involves  the  relation  of  superior  and  in- 
ferior. 

Assuming,  then,  that  human  governmental  power 
is  rational,  in  whom  is  it  naturally  vested  ?  Not, 
Suarez  answers,2  in  any  single  man,  for  the  reason 
that  all  men  are  equally  free;  not  even,  as  some 
one  might  suggest,  in  Adam  and  his  descendants 
by  primogeniture ; 8  for  God  conferred  upon  Adam 
merely  domestic,  and  in  no  sense  political,  authority. 
The  only  depositary  of  the  supreme  power  that  has 
a  basis  in  natural  right  is  the  whole  community,  not 
any  individual  whatever.  For  a  state  is  not  a  mere 
aggregation  of  human  beings  without  order  and  with- 
out physical  or  moral  unity,  but  a  group  of  men 
constituted,  either  by  special  act  of  will  or  by  gen- 
eral consent,  into  a  social  body  for  a  common  polit- 
ical end,  and  possessing  thus  a  moral  unity  that 

1  Quia  homines  naturaliter  non  gubernantur  politice  per  angelos 
neque  immediate  per  Deum  ipsum.  —  III,  i,  5. 

2  III,  ii. 

8  Suarez  here  anticipates  a  theory  later  made  prominent  by  Filmer. 
See  infra,  chap,  vii,  sec.  7. 


144  POLITICAL  THEORIES 

necessarily  implies  a  regulating  authority.  Such,  a 
society  without  some  general  controlling  power  is 
logically  inconceivable ; l  and  as  such  power  is  in  no 
specific  individual,  it  must  necessarily  be  in  the  whole 
society. 

Here  we  have  the  theory  of  popular  sovereignty  in 
a  form  almost  identical  philosophically  with  that  later 
set  forth  by  Rousseau.  It  is  the  full  fruition  of  the 
seeds  embodied  in  the  familiar  dicta  of  Roman  juris- 
prudence, that  all  men  are  by  nature  free  and  equal, 
and  that  the  people  are  the  source  of  law.  But 
Suarez  follows  the  Roman  influence  still  farther  and 
provides  for  the  nullification  in  practice  of  the  popular 
sovereignty  that  he  has  set  up  in  theory.  Looking 
at  the  supreme  power  as  primarily  the  power  to 
enact  law,  he  can  very  easily  endow  the  people  with 
facilities  for  divesting  themselves  of  their  treasure. 
As  the  supreme  power  of  the  community  had  its 
source  in  the  consent  of  men  to  form  a  society,  so  it 
may  be  alienated  by  a  like  act  of  will.2  Thus  Suarez 
opens  the  way  for  his  demonstration  of  the  familiar 
ecclesiastical  dogma,  that  while  monarchic  govern- 
ment is  on  the  whole  the  best,  the  monarch's  power 
is  in  all  cases  derivable,  not  from  any  divine  grant, 
but  from  the  consent  of  the  people.3  Once  given, 
however,  this  consent  binds  the  givers  to  subjection 
indefinitely,  save  in  case  of  injustice  and  tyranny. 

1  Natural!  ration!  repugnat,  dari  congregation  em  humanam,  quae 
per  modutii  unius  corporis  politic!  uniatur,  et  non  habere  aliquara 
potestatem  communem  cui  singuli  de  communitate  parere  teneantur. 
—  Ill,  ii,  4. 

2  III,  iii,  6.  8  III,  iv,  1-5. 


SUAREZ  ON  SOVEREIGNTY  145 

The  further  development  of  this  doctrine,  whereby 
the  intervention  of  the  Pope  for  the  correction  of 
secular  acts  endangering  souls  is  duly  justified,  it  is 
not  necessary  for  us  to  follow.  Suarez  presents 
merely  the  long  familiar  dogmas  of  ecclesiastical 
jurisdiction  and  papal  supremacy  which  were  now 
being  so  vigorously  revived  in  the  interest  of  the  old 
church.  Like  Bellarmin,  Suarez  explicitly  denies  to 
the  Pope  all  direct  power  in  political  affairs  outside 
of  his  own  temporal  dominions,  but  only  to  empha- 
size the  indirect  power  through  which  the  supreme 
interests  of  religion  are  to  be  conserved.1 

In  the  detailed  exposition  of  ultimate  lawmaking 
authority  (potestas  condendi  leges  cimles)  Suarez 
rounds  out  a  conception  that  is  closely  analogous  to 
sovereignty  in  Bodin's  theory ;  and  like  Bodin,  more- 
over, Suarez,  while  fully  recognizing  the  legitimacy 
of  popular  and  aristocratic  governments,  in  which  the 
supreme  power  is  exercised  by  the  whole  or  a  part  of 
the  people  in  whom  it  naturally  inheres,  is  chiefly 
interested  in  the  monarchic  form  and  tends  often  to 
confound  prince  and  legislator.  His  ideal  is  the 
absolute  monarchy  of  the  times,  and  his  illustrations, 
so  far  as  he  makes  appeal  to  contemporaneous  condi- 
tions, are  drawn  chiefly  from  Spain.  As  explicitly 
as  Bodin  he  denies  the  character  of  law  to  the  enact- 
ments of  subordinate  princes,  provinces  and  cities, 
and  ascribes  it  exclusively  to  the  commands  of  those 
who  have  no  temporal  superior.2  Again,  like  Bodin, 
he  finds  a  limit  to  the  supreme  power,  not  only 

1  III,  vi,  2  and  3.  2  III,  ix,  passim. 


VOL.  II.  — I. 


146  POLITICAL  THEORIES 

in  the  laws  of  God  and  of  nature,  but  also  in  other 
fundamental  principles.  Bodin,  as  we  have  seen,1 
had  recourse  to  certain  vague  leges  imperil;  Suarez, 
resting  on  his  consensual  theory  as  to  the  constitu- 
tion of  a  supreme  legislator,  more  logically  finds  the 
limit  in  the  form  and  condition  under  which  the  trans- 
fer of  power  was  made  by  the  community.2  There  is, 
he  says,  a  virtual  contract  between  prince  and  people, 
through  which  the  character  of  the  grant  is  determined, 
and  the  terms  of  this  contract  may  be  expressed  either 
in  written  documents,  or  in  the  custom  of  the  land. 
This  explanation  is  much  more  satisfactory  than 
Bodin's,  though  it  places  Suarez  fully  in  line  with  the 
contract  theorists  of  the  anti-monarchic  school,  with 
whose  spirit  and  methods  he  manifests  in  general 
little  sympathy. 

The  restrictions  placed  upon  human  legislation  by 
divine  and  natural  law  find,  of  course,  elaborate  expo- 
sition in  Suarez.  Primarily,  here,  he  follows  Aquinas 
in  recognizing  that  political  sovereignty  is  indepen- 
dent of  the  faith  or  private  character  of  a  prince,3  and 
that  the  laws  of  an  infidel  or  an  immoral  sovereign 
are  prima  facie  binding  upon  all  his  subjects.  A 
valid  ground  for  disobedience  is  to  be  found,  not  in 
the  quality  of  the  legislator,  but  in  that  of  the  law. 

1  Supra,  p.  101. 

2  ...  Sequitur  .  .  .  etiam  in  principe  supremo  esse  hanc  potes- 
tatem  eo  modo,  et  sub  ea  conditione,  sub  qua  data  est  et  translata  per 
communitatem.  .  .  .     Quia  hsec  est  veluti  conventio  quaedam  inter 
communitatem  et  principem,  et  ideo  potestas  recepta  non  excedit 
modum  donationis  vel  conventionis.  —  III,  ix,  2. 

*  III,  x. 


SUAREZ  ON  TAXATION  147 

A  civil  statute  that  contravenes  natural  justice  is 
ipso  facto  void ;  for  in  the  hierarchy  of  the  laws  the 
precepts  of  nature  are  higher  both  in  source  and 
in  effect  than  those  of  any  merely  human  power.1 
The  great  end  of  political  action  is  to  make  men 
good,  and  to  this  end  the  lesser  utilities  of  social  life 
must  be  subordinated.  Against  the  doctrine,  which 
he  ascribes  to  Machiavelli,2  that  the  chief  end  of  civil 
legislation  is  to  preserve  and  augment  the  power  of 
the  state,  and  that  whatever  conduces  to  this  end  is 
justified  irrespective  of  its  moral  quality,  Suarez 
enters  an  emphatic  protest.3  The  utmost  that  is  pos- 
sible in  civil  law  is  in  some  extreme  cases  to  permit, 
but  never  to  enjoin,  what  is  wrong.4 

Of  all  the  great  array  of  concrete  and  special  topics 
which  are  considered  by  Suarez  in  his  discussion  of 
civil  law,  a  brief  reference  to  a  single  one  will  throw 
much  light  on  the  general  trend  of  his  philosophy. 
The  question  of  taxation  (tributum)  was,  in  his  day,  a 
question  of  burning  importance,  and  was  closely  in- 
volved in  the  whole  theory  of  the  absolute  monarchy. 
When  the  feudal  revenues  of  the  chief  European 
kings  had  become  hopelessly  inadequate  to  the  de- 
mands of  the  imperial  policies  that  characterized  the 
times,  and  no  satisfactory  system  had  been  evolved  to 


1  Cum  ergo  lex  naturalis  sit  lex  Dei  .  .  .  non  potest  lex  civilis 
contra  illam  praevalere ;  debet  ergo  esse  de  re  honesta  seu  consentanea 
rationi  natural!,  alias  lex  non  erit.  —  III,  xii,  4. 

2  III,  xii,  2. 

8  " .  .  .  omnino  falsa  et  erronea  est." 

4  Leges  ergo  civiles  non  prsecipiunt  iniqua ;  interdum  vero  per- 
mittunt  aut  tolerant  ad  maiora  mala  vitanda.  —  III,  xii,  5. 


148  POLITICAL   THEORIES 

supplement  the  deficiencies,  questions  of  finance  as- 
sumed great  prominence  in  political  debate.  In  the 
early  seventeenth  century  Spain  had  already  entered 
upon  her  decadence,  largely  because  of  defects  in 
her  financial  system,  and  England  was  just  at  the 
beginning  of  that  struggle  over  taxation  which  was 
soon  to  bring  revolution.  It  was  natural,  then,  that 
legislation  respecting  revenue  should  engage  the  at- 
tention of  a  philosopher  like  Suarez. 

The  abstract  principle  that  the  imposition  of  taxes 
must  be  conformed  to  the  canons  of  justice  he  estab- 
lishes with  his  usual  dry  formalism.  Of  more  partic- 
ular interest  to  us  is  his  examination  of  the  question, 
whether  the  consent  of  the  subjects  is  essential 
to  the  justice  of  a  tax.1  This  seems  a  somewhat 
modern  topic  for  so  mediaeval  a  work  as  that  of  Sua- 
rez, but  the  immediate  source  of  the  debate  was  the 
existence  of  a  Spanish  law  requiring  that  no  new  tax 
should  be  imposed  except  with  the  previous  summons 
and  consent  of  the  realm  (nisi  prim  convocato  regno 
et  illis  consentientibus),  and  the  contention  of  some 
that  this  provision  embodied,  not  merely  a  precept  of 
local  expediency,  but  a  broad  principle  of  natural 
law.  Suarez  states  this  claim  only  to  refute  it.  His 
method  affords  no  ground  for  holding  that  consent  of 
the  payers  is  essential  to  justice  in  taxation.  "  This 
opinion  ...  I  find  neither  in  common,  canon  or 
civil  law,  nor  in  the  ancient  authors  ;  and  therefore  I 
do  not  think  such  a  condition  necessary  of  natural 
right."  There  is  nothing,  he  argues,  essentially  evil 

1 V,  xvii. 


SUAREZ  ON  TAXATION  149 

in  the  possession  by  a  prince  of  power  to  impose 
just  taxes  at  his  discretion.  Moreover,  the  general 
consent  by  which  the  sovereignty  was  vested  in  a 
monarch  covers  the  special  authorization  to  raise 
revenue  just  as  it  does  that  to  declare  war,  to  build 
roads  and  bridges,  etc.  If  a  state  is  really  monarchic, 
full  power  to  raise  money  must  be  in  the  monarch, 
and  any  participation  by  the  subjects  can  be  only  the 
result  of  a  benevolent  concession  by  him. 

This  attitude  of  Suarez  is  entirely  characteristic  of 
the  theological  Catholic  jurists,  whose  preoccupation 
was,  in  their  doctrine  of  popular  sovereignty,  much 
more  to  secure  a  ground  for  the  subjection  of  mon- 
archs  to  the  moral  and  spiritual  dominion  of  the 
ecclesiastical  power  than  to  promote  popular  demon- 
strations against  the  political  autocracy  of  the  kings. 

6.   Campanella 

To  complete  the  notice  of  the  political  doctrine 
that  prevailed  in  the  ranks  of  good  Catholics,  some 
attention  may  be  given  to  a  philosopher  who  stood 
entirely  alone  in  his  time,  and  whose  system  is  indeed 
unique  among  the  philosophers  of  all  time.  Thomas 
Campanella  (1568-1639)  was  a  Dominican  friar  of 
southern  Italy.  Intellectually  he  was  wholly  out  of 
relation  to  the  normal  spirit  of  his  order,  and  found 
satisfaction  in  the  ideas  that  had  spread  through 
Europe  as  the  particular  characteristics  of  the  Renais- 
sance. The  general  system  of  philosophy  which  he 
formulated  was  of  a  strongly  materialistic  type,  with 


150  POLITICAL  THEORIES 

hardly  concealed  leanings  toward  pantheism.1  But 
with  all  the  rationalism  and  materialism  which  per- 
meated his  thought,  he  never  deviated  from  the  pro- 
fession of  the  strictest  regard  for  the  creed  and 
practice  of  the  Catholic  church.  The  unique  char- 
acter of  his  system  appeared  in  this  close  union  of 
materialism  with  a  narrow  Christian  theology.  Cam- 
panella  insisted  always  on  a  synthesis  of  philosophy 
and  theology  that  had  a  particularly  novel  and  gro- 
tesque effect  in  his  treatment  of  politics. 

The  political  doctrine  presented  in  his  systematic 
philosophy 2  is  a  rather  confused  collection  of  dogmas, 
many  unexceptionable  in  clarity  and  practical  worth, 
many  vague  and  mystical,  representing  a  vein  that 
runs  through  all  his  thought.  What  is  most  distinc- 
tive and  striking  in  his  politics  may  be  found  best, 
however,  in  his  Utopian  work,  The  City  of  Sol 3  ( Civi- 
tas  Solis).  This  is  in  literary  form  a  description  of 
an  hitherto  unknown  commonwealth  by  a  Genoese 
sailor.  In  substance,  however,  it  presents,  first,  the 
ultimate  philosophical  principle  on  which  Campanella 
explained  nature  and  history,  i.e.,  that  all  the  pheno- 
mena of  each  could  be  summed  up  under  the  three 
principles,  power,  intelligence  and  love  ;  second,  a 
blending  of  Platonic  with  mediaeval  monkish  ideas  in 

1  See  his  Realis  Philosophia  Epilogistica,  in  four  parts,  treating 
respectively  of  "  The  Nature  of  Things,"  "  Ethics,"  "  Politics  "  and 
"  Economics." 

2  In  Realis  Philosophia,  Part  III. 

8  Appended  to  Part  III  of  the  Realis  Philosophia.  Translated,  with 
a  few  omissions  that  are  not  indicated,  in  the  volume  entitled  Ideal 
Commonwealths  in  the  Library  of  Universal  Knowledge  edited  by 
Henry  Morley.  French  unexpurgated  version  in  the  (Euvres  choisies. 


THE  CITY  OF  SOL  151 

the  conception  of  social  organization ;  and  third,  the 
conception  of  papal  autocracy  as  the  ideal  of  political 
organization  and  government. 

The  City  of  Sol  is  represented  as  an  absolute 
monarchy  whose  ruler  is  designated  as  Sol.  This 
chief  of  the  state  is  named  for  life  by  a  college  of 
magistrates,  who  combine,  as  does  the  chief  himself, 
both  political  and  religious  functions  in  their  official 
character.  It  needs,  of  course,  no  great  penetration 
to  discern  that  Sol's  election,  tenure  and  duties  are 
precisely  those  of  the  Roman  pontiff,  according  to  the 
views  of  the  extremist  supporters  of  the  papacy. 
For  his  chief  ministers  Sol  has  the  three,  "  Potentia," 
"Prudentia,"  and  "Amor."  The  first  is  in  charge 
of  all  that  pertains  to  war,  diplomacy  and  whatever 
requires  the  application  of  physical  force ;  the  second 
superintends  public  instruction,  the  fine  arts  and 
public  works ;  the  third  has  in  charge  all  that  per- 
tains to  the  perpetuation,  preservation  and  physical 
improvement  of  the  people.  This  administrative  or- 
ganization is  merely  an  application  of  Campanella's 
metaphysics.  Besides  this  system  of  magistrates,  the 
constitution  provides  for  two  assemblies,  one  consist- 
ing of  only  the  magistrates,  who  are  of  course  at  the 
same  time  priests,  and  the  other  including  all  the 
people.  The  first  of  these  assemblies  possesses  all 
authority  in  legislation  and  in  appointments  to  office; 
the  second  is  limited  substantially  to  passing  on 
questions  of  peace  and  war. 

While  this  scheme  of  constitutional  organization 
expresses  the  general  philosophy  of  Campanella  and 


152  POLITICAL  THEORIES 

his  theory  as  to  the  indissoluble  union  of  secular  and 
religious  functions,  his  scheme  of  social  organization 
and  action  follows  very  closely  the  projects  of  Plato 
and  Sir  Thomas  More.  Campanella  recognizes  abso- 
lutely no  family  institution  and  no  individual  prop- 
erty. The  life  of  the  citizens  is  lived  in  common  and 
they  eat  at  common  tables,  although  the  grades  of  food 
vary  according  to  the  merit  of  the  different  classes  of 
people.  Like  Plato,  Campanella  recognizes  three  of 
these  classes,  though  the  three  do  not  correspond 
strictly  to  those  of  Plato,  the  middle  class  having  for 
its  characteristic  the  modern  function  of  industry 
rather  than  the  ancient  function  of  military  activity. 
The  assignment  of  citizens  to  their  respective  classes 
is  provided  for  as  in  Plato ;  that  is,  the  priest-magis- 
trates, which  correspond  to  Plato's  philosopher-guar- 
dians, are  able  through  the  strict  supervision  of  the 
whole  life  of  the  citizens  to  determine  with  perfect 
certainty  in  what  class  each  member  of  the  state 
properly  belongs. 

SELECT  REFERENCES 

BARCLAY,  W.,  De  Regno,  and  De  Potestate  Papce.  BELLAR- 
MIN,  Opera,  esp.  Tom.  I  and  V.  BUNGENER,  Histoire  du  Concile 
de  Trent.  CAMPANELLA,  Realis  Philosophia  Epilogistica,  Pars 
III ;  Civitas  Solis.  FIGGIS,  The  Divine  Right  of  Kings,  chap,  vi 
passim.  FRANCK,  Reformateurs  et  Publicistes,  XVII™  siede, 
13-51  (Suarez),  149-201  (Campanella).  GOOCH,  English 
Democratic  Ideas,  Introduction.  HALLAM,  Literature  of 
Europe,  Part  II,  chap.  iv.  JANET,  Histoire,  Vol.  II,  pp.  54-82 
(the  Jesuits),  130-132  (Campanella).  KALTENBORN,  Die  Vor- 
Idufer  des  H.  Grotius,  chap.  vi.  KREBS,  Die  politische  PublizistiJc 
der  Jesuiten,  in  Hallesche  Abhandlungen,  1890.  SUAREZ,  Trac- 
tatus  de  Legibus. 


CHAPTER  V 

HUGO    GROTIUS 

1.   Protestant  Precursors  of  Grotius 

TWELVE  years  after  the  publication  of  Suarez's  De 
Legibus  there  appeared  at  Paris  a  treatise  which, 
though  no  more  learned  or  logical  than  that  of  the 
Spaniard  and  little  different  from  it  in  many  of  its 
conclusions,  was  destined  to  have  an  enormously 
greater  influence  on  the  development  of  juristic  and 
political  theory.  This  was  the  famous  work  of  Gro- 
tius on  The  Law  of  War  and  Peace.  To  the  great 
Dutch  jurist  and  his  work  has  been  attributed  by 
general  consent  the  foundation  of  the  science  of  inter- 
national law,  in  which  is  to  be  found  the  perfect 
fruit  of  the  doctrine  of  the  law  of  nature.  Without 
detracting  from  the  just  fame  of  Grotius,  it  is  neces- 
sary for  the  careful  student  to  point  out  the  currents 
that  were  manifesting  themselves  in  various  philosoph- 
ical channels  before  he  wrote  and  that  set  straight 
toward  the  system  which  he  presented. 

In  the  preceding  chapter  we  have  seen  how  exten- 
sively the  law  of  nature  and  the  law  of  nations  were 
developed  by  the  Catholic  jurists.  The  substance  of 
their  doctrine  was  entirely  in  line  with  that  of  Gro- 
tius, both  in  general  scope  and  in  much  of  the  detail. 
They  wrought  over  the  material  transmitted  by  the 

153 


154  POLITICAL  THEOKIES 

mediaeval  doctors  of  theology  and  presented  it  with 
all  the  paraphernalia  of  scholasticism  and  with  the 
sanction  of  the  Roman  church.  But  to  a  very  large 
and  very  intelligent  part  of  the  European  public  at  this 
time  scholasticism  and  all  its  works  were  becoming 
intensely  distasteful,  both  through  religious  and 
through  humanistic  influences.  Where  this  was  the 
case  the  jurisprudence  and  incidental  politics  of  the 
Spanish  school  could  get  no  hearing  and  could  pro- 
duce no  effect.  If  any  development  of  natural  or 
international  law  was  forthcoming,  it  would  have 
to  be  through  philosophy  that  bore  the  impress  of 
Protestantism  or  of  humanism  or  of  both.  Grotius 
happily  combined  the  requisite  qualifications  in  both 
respects  and  received  the  glory  that  was  the  just 
reward  of  the  combination.  But  before  his  day  there 
were  jurists  who  failed  of  securing  this  glory,  not 
because  they  failed  to  detect  and  set  forth  the  same 
principles  which  won  distinction  for  him,  but  because 
their  Protestantism  was  much  more  conspicuous  than 
their  humanism  and  because  the  bias  and  method 
of  their  theological  training  set  almost  as  impassable 
a  barrier  to  the  spread  of  their  influence  as  that  which 
hedged  in  the  Catholic  philosophers.1 

The  particular  line  followed  by  these  Protestant 
jurists  in  their  treatment  of  the  law  of  nature  was 
that  marked  out  by  Melanchthon,2  to  whom  they  all 

1  The  Protestant  precursors  of  Grotius  are  treated  in  Kaltenborn, 
op.  cit.,  cap.  vii ;  Abtheilung  IT  of  this  work  contains  abridged  reprints 
of  the  treatises  of  three  little-known  jurists  who  wrote  on  the  ius 
natures,  Oldendorp,  Hemming  and  Winkler. 

2  Supra,  p.  16. 


THE   PRECURSORS  OF   GROTIUS  155 


referred  with  reverence.  The  content  of  the  law  of 
nature  is  to  be  found,  they  held,  in  right  reason, 
supplemented  and  directed  by  the  explicit  injunctions 
of  God  in  the  Decalogue.  The  precise  relation  between 
the  divine  and  the  purely  human  elements  in  this 
law  constituted  a  fundamental  problem  for  the  phi- 
losophers, who  traced  out  with  much  elaboration  the 
steps  by  which  all  the  social  virtues  were  deducible 
from  the  revealed  commands  of  God.1  The  law  of 
nature  received  at  then:  hands  the  form  of  a  pretty 
well  defined  code  and  thus  gained  much  in  concreteness 
and  in  assimilation  to  their  general  conceptions  of  law. 
Winkler,  whose  work2  makes  a  perfect  transition 
from  Melanchthon  to  Grotius,  enumerates  twenty-one 
articles  in  which  the  law  of  nature  is  comprehended 
and  on  which  the  natural  rights  of  men  (iura  natura- 
lia)  are  based.  His  list  includes  the  precepts  of  rever- 
ence for  God  and  other  religious  duties,  of  self-respect 
and  love  of  the  human  kind,  of  all  the  common  fam- 
ily and  social  virtues,  and  of  such  political  virtues  as 
love  of  country,  recognition  of  liberty  and  equality, 
and  "liberality  or  community  of  goods"  (liberalitas 
sen  communio  bonorum).  Here  appears  very  clearly 
that  confusion  of  the  moral  virtues  with  legal  rights 
which  was  to  figure  so  prominently  in  the  later  theo- 

1  Cf.  Oldendorp,  who  traces  most  of  the  excellencies  of  the  Roman 
law  to  the  Twelve  Tables,  which  he  says  were  taken  over  from  the 
Greeks,  who  in  turn  had  derived  their  principles  from  the  Hebrews 
and  thus  through  the  Decalogue  from  God  direct.    Kaltenborn,  op. 
cit.,  Abth.  II,  p.  25. 

2  Principiorum  luris  Libri   V;  Kaltenborn,  loc.  cit.,  esp.  pp.  45 
et  seq. 


156  POLITICAL  THEORIES 

ries  of  natural  law  and  to  play  so  large  a  part  in  the 
revolutionary  movements  of  the  next  two  centuries. 

But  the  Protestant  jurists  distinguish  as  carefully 
as  the  Catholics  between  ius  naturce  and  ius  gentium. 
The  list  of  natural  rights  just  given  is  in  the  field 
of  what  Winkler  calls  ius  naturce  prius,  which  is 
entirely  distinct  from  ius  naturce  posterius,  or  ius  gen- 
tium. Natural  rights  are  eternal  and  immutable  — 
not  to  be  changed  even  by  God  himself.1  But  the  rules 
of  ius  gentium  are  of  human  and  not  of  divine  origin. 
They  became  necessary  because  of  the  transgression 
of  Adam.  Prior  to  that,  as  Winkler  explains,  the  ius 
naturce  prius  was  sufficient  and  men  lived  under  it 
without  conflict,  but  after  the  division  of  families  and 
races,  subsequent  to  the  fall,  a  body  of  rules  became 
necessary  in  order  to  regulate  the  relations  between 
these,  and  thus  arose  ius  gentium.  The  end  of  ius 
gentium  is  to  protect  and  maintain  ius  naturce.  On 
this  purpose  are  based  all  the  principles  and  practices 
that  have  arisen  among  nations  in  connection  with 
war.  This  conception  of  ius  gentium,  which  appears 
with  the  utmost  distinctness  in  Winkler,  illustrates 
particularly  well  the  tendency,  which  through  and 
after  Grotius  became  predominant,  to  designate  by 
ius  gentium,  not  the  rules  of  private  law  common  to 
all  or  many  nations,  but  rather  the  rules  of  public 
law  by  which  the  relations  between  nations  were 
regulated. 

Without  dwelling  further  on  the  work  of  the  Prot- 

1  lura  naturalia  esse  aeterna,  imnmtabilia,  adeo  ut  nee  a  Deo  mutari 
possint,  cum  sint  Deus  ipse.  —  Winkler,  op.  cit.,  Lib.  Ill,  cap.  viii. 


THE  JURISTIC  MOVEMENT  157 

estant  precursors  of  Grotius,  it  is  evident  that  their 
philosophy  was  in  substantial  accord  with  that  of  the 
Catholics  so  far  as  general  tendencies  were  concerned. 
The  two  bodies  of  thinkers,  though  following  meth- 
ods that  were  materially  different,  reached  prac- 
tically the  same  results.  European  jurisprudence  as 
a  whole  was  in  the  fifteenth  and  early  sixteenth  cen- 
turies moving  toward  an  extensive  readjustment  of 
the  lines  on  which  both  public  and  private  morality 
were  henceforth  to  be  tested  and  developed.  Objec- 
tive conditions,  both  material  and  intellectual,  were 
in  1625  favorable  for  a  decisive  revelation  of  this 
movement  and  for  an  effective  appeal  in  its  behalf, 
and  the  man  was  at  hand  who  was  as  well  as  possible 
qualified  to  make  both  revelation  and  appeal. 

2.    The  General  Conditions  of  his  Work 

The  profound  impression  made  on  the  contempo- 
raries of  Grotius  by  his  treatise  on  The  Law  of  War 
and  Peace,1  and  its  continuing  influence  on  the  publi- 
cists of  succeeding  generations  are  commonplaces  of 
literary  history.  What  factors  contributed  to  produce 
these  effects  are  not  altogether  apparent  to  the  modern 
reader  of  the  volumes,  and  must  be  sought  to  a  con- 
siderable extent  in  conditions  external  to  the  work  in 
itself. 

In  the  first  place  the  personality  of  Grotius  insured 
for  whatever  he  wrote  an  extraordinary  respect  from 

1  De  lure  Belli  ac  Pacts  Libri  Tres.  I  have  used  the  text  and 
abridged  translation  of  Whewell,  Cambridge  University  Press,  1853. 
The  translation  is  not  always  trustworthy  and  must  be  used  with 
caution. 


158  POLITICAL  THEORIES 

the  men  of  his  own  time.  From  infancy  almost  he 
had  been  a  noted  personage  in  the  learned  circles  of 
northern  Europe.  Born  of  an  aristocratic  Dutch 
family  at  Delft,  in  1583,  and  enjoying  all  the  advan- 
tages of  most  careful  training,  he  became  noted  in 
early  childhood  as  an  intellectual  prodigy.  At  eight 
years  of  age  his  Latin  verses  attracted  attention  out- 
side of  his  own  family;  at  twelve  a  Greek  ode  of 
Pindaric  quality  in  honour  of  the  Prince  of  Orange 
won  plaudits  from  the  most  erudite  of  a  time  when 
classical  erudition  was  almost  a  fad ;  and  at  fourteen 
he  crowned  a  university  career  at  Leyden,  under  the 
guidance  of  the  great  Scaliger,  with  astonishing  dem- 
onstrations of  proficiency  in  mathematics,  philoso- 
phy and  jurisprudence.  The  way  to  distinction  in 
scholarship  and  in  public  life  lay  clear  before  him  as 
he  matured,  and  he  assumed  quickly  a  place  that 
proved  his  precocity  to  have  been  based  on  no  evanes- 
cent mental  endowment.  Editions  and  translations 
of  obscure  works  of  antiquity,  with  a  considerable  list 
of  Latin  odes  and  tragedies,  preserved  and  enhanced 
his  reputation  as  a  classicist,  while  an  early  recognized 
preeminence  at  the  Dutch  bar,  together  with  his  cel- 
ebrated work  on  The  Freedom  of  the  Sea  (Mare 
Liberum)  and  other  studies  in  public  law,  established 
his  fame  as  a  jurist.  At  thirty-three,  after  holding 
various  judicial  and  diplomatic  posts,  he  became  the 
chief  administrative  officer  (Grand  Pensionary)  of 
West  Friesland  and  Holland.  In  this  position  he 
became  prominently  implicated  in  the  civil  dissen- 
sions in  the  Dutch  Republic  that  centred  about  the 


THE  LIFE  OF  GROTIUS  159 


theological  disputes  between  Gomarists  and  Arminians 
and  the  economic  and  political  antagonisms  between 
the  commercial  aristocracy,  headed  by  John  of  Olden- 
Barneveldt,  and  the  agricultural  and  industrial  masses, 
to  whom  Maurice  of  Nassau  looked  for  support. 
Grotius,  sharing  the  defeat  that  cost  Olden-Barneveldt 
his  life,  was  sentenced  to  perpetual  imprisonment,  but 
soon  succeeded  in  escaping  to  France.  There,  under 
the  patronage  of  Louis  XIII,  he  resumed  his  literary 
career,  and  there  he  produced,  in  1625,  his  greatest 
work.  The  misfortunes  which  brought  him  to  France 
served  no  less  than  the  prosperity  of  his  earlier  life  in 
Holland  to  attract  attention  to  his  writings.  His 
favour  with  royalty  in  France  was  not  destined  to  con- 
tinue long.  With  Richelieu  he  could  find  no  modus 
vivendi,  and  accordingly  he  accepted  an  invitation 
of  the  Swedish  court,  where  the  enlightened  Oxen- 
stierna  gladly  welcomed  him.  As  Swedish  ambas- 
sador Grotius  returned  to  Paris,  and  served  there  for 
nine  years,  till  1644,  the  year  preceding  his  death. 

Besides  the  fact  of  his  remarkable  intellectual  per- 
sonality, the  general  spirit  of  theological  liberalism 
that  pervaded  all  the  works  of  Grotius  appealed  to  a 
large  and  now  rapidly  growing  body  of  thinkers  and 
secured  a  respect  for  his  opinions  that  was  not  neces- 
sarily based  on  their  intrinsic  soundness.  That  he 
was  a  devout  Christian  there  can  be  no  doubt  what- 
ever, or  that  he  was  wholly  free  from  the  narrowness 
and  intolerance  that,  in  the  heat  of  the  century-long 
conflict  precipitated  by  Luther,  had  necessarily  come 
to  characterize  Catholic  and  Protestant  combatants 


160  POLITICAL  THEORIES 

alike.  His  general  attitude  was  somewhat  like  that 
of  Bodin ; l  he  willingly  recognized  and  appropriated 
what  was  rational  in  the  doctrines  of  either  side,  but 
he  showed  nothing  of  that  spiteful  spirit  in  which 
were  conceived  the  systems  of  the  Jesuits  on  the  one 
hand,  and  of  the  Calvinist  and  Lutheran  theologians 
on  the  other.  The  age  of  rationalism  was  in  fact  at 
hand,  and  Grotius,  however  unwillingly,  promoted  its 
coming.  It  was  not  his  learned  and  ponderous  dis- 
quisitions on  theological  themes  that  won  the  venera- 
tion of  his  public,  but  his  groping  after  a  standard  of 
moral  and  political  conduct  that  should  avail  for  all 
times  and  all  peoples,  regardless  of  the  particular 
religious  creed  of  the  Christian. 

The  need  for  such  a  standard  was  emphasized  to  all 
reflecting  spirits  by  the  trend  of  political  movements 
in  Europe  in  the  early  part  of  the  seventeenth  century. 
Though  in  several  countries  civil  dissension  based  on 
the  differences  between  Catholic  and  Protestant  still 
continued  in  forms  more  or  less  intense,  the  religious 
element  in  the  controversies  tended  steadily  to  become 
insignificant  as  compared  with  purely  secular  issues. 
Even  in  Germany,  where  the  Thirty  Years'  War  broke 
out  in  1618  on  a  religious  quarrel,  the  development 
of  the  struggle  brought  soon  into  the  foreground  the 
political  and  dynastic  controversies  of  the  leading 
princes,  and  from  the  devastation  of  all  central 
Europe  was  derived  little  more  than  the  full  con- 
sciousness, certainly  not  a  settlement,  of  the  fateful 
rivalry  of  Hapsburg  and  Bourbon.  >,  The  whole  history 

1  Supra,  p.  82. 


THE  PURPOSE  OF  GROTIUS  161 

of  the  religious  wars  was  evidence  that  the  Christian 
precepts  of  charity  and  mercy  had  no  power  to  miti- 
gate the  horrors  of  war  between  those  who  differed 
as  to  the  manner  of  worshipping  Christ,  and  the  early 
years  of  the  Thirty  Years'  War  afforded  a  renewed 
demonstration  of  this  fact.  It  was  this  that  suggested 
to  Grotius,  whose  nature  was  peculiarly  mild  and  hu- 
mane, the  importance  of  grouping  into  a  system  the 
hitherto  but  little  considered  principles  by  which  war 
could  be  rationalized  and  even  Christianized.  In  his 
Introduction  to  The  Law  of  War  and  Peace  he  says : 

I  saw  prevailing  throughout  the  Christian  world  a  license 
in  making  war  of  which  even  barbarous  nations  would  have 
been  ashamed ;  recourse  being  had  to  arms  for  slight  reasons 
or  no  reason ;  and  when  arms  were  once  taken  up,  all  rever- 
ence for  divine  and  human  law  was  thrown  away,  just  as  if  men 
were  thenceforth  authorized  to  commit  all  crimes  without 
restraint.1 

About  this  central  purpose  of  defining  the  rights 
of  war  were  readily  shaped  the  various  other  ele- 
ments, suggested  by  his  juristic  training  and  his 
diplomatic  experience,  which  made  his  work  an  intro- 
duction to  the  newest  branch  of  public  law.  For  the 
foundation  of  his  system  he  had  to  reshape  the  con- 
ceptions of  ius  naturale  and  ius  gentium,  as  alone 
embodying  legal  rules  of  universal  validity.  In  the 
development  of  the  system  he  had  to  determine  with 
precision  who  could  properly  be  a  party  to  a  public 
war,  that  is,  in  whom  was  vested  the  sovereign  power 
in  a  state ;  what  were  the  grounds  and  the  formalities 

1  Prolegomena,  sec.  28,  WhewelTs  translation. 

VOL.  II.  M 


162  POLITICAL  THEORIES 

through  which  a  condition  of  war  came  into  existence; 
and  what  were  the  formalities  and  the  facts  through 
which  a  condition  of  peace  was  restored.  Thus  his 
work  involved  vital  questions  of  ethics  and  politics  as 
well  as  the  particular  problems  of  international  law, 
and  the  just  fame  which  attached  to  him  as  the  founder 
of  the  latter  science  gave  by  attraction  a  greatly  en- 
hanced weight  to  his  less  distinctive  doctrines  in  the 
former  fields.  He  became  a  venerated  authority  to  a 
whole  school  of  political  philosophers,  whose  theories, 
following  what  was  an  accidental  rather  than  an  es- 
sential feature  of  his  work,  systematically  relegated 
politics  proper  to  the  position  of  an  addendum  to  a 
broader  science  —  the  law  of  nature  and  of  nations.1 
A  final  element  in  the  reputation  and  influence  of 
Grotius's  work  is  doubtless  to  be  found  in  his  style 
and  method.  He  illustrates  in  these  respects  the 
best  and  the  worst  features  of  the  reaction  against 
scholasticism.  On  the  one  hand,  the  philosophical 
jargon  and  the  endless  more  or  less  empty  logical 
refinements  under  which  any  deviation  from  author- 
ity was  concealed  by  the  later  mediaevals  find  no 
place  in  his  work.  His  enunciation  of  principles  is 
clear,  straightforward  and  concise,  and  appeals  to  the 
intelligence  of  the  untrained  as  well  as  of  the  trained 


1  From  Pufendorf  through  a  long  series  of  philosophers  the  rubric 
under  which  political  theory  was  found  was:  De  lure  Naturce  et 
Gentium.  The  Germans,  after  escaping  through  the  Kantian  move- 
ment from  the  domination  of  the  old  Latin  forms,  preserved  the  spirit 
of  the  ancient  system  by  their  works  on  Naturrecht ;  and  in  Scotland 
until  quite  recently  economics,  politics  and  ethics  were  all  embraced 
in  the  sphere  of  certain  university  chairs  of  "  natural  law." 


GROTIUS'  STYLE  163 

reader.  Nothing  could  be  put  more  effectively  than 
the  justification  and  first  principles  of  his  system  as 
they  stand  in  the  Prolegomena.  It  is  the  strength 
and  simplicity  of  his  style  that  has  preserved  the  work 
of  Grotius  in  the  esteem  of  generations  down  to  the 
present  day.  To  his  contemporaries,  however,  an 
effective  appeal  was  made  by  a  device  which  has  in 
later  days  become  repulsive,  namely,  a  prodigious 
mass  of  quotations,  more  or  less  accurate  and  more 
or  less  pertinent,  from  ancient  authors,  —  "  philoso- 
phers, historians,  poets  and  orators,"  —  sustaining  and 
illustrating,  presumedly,  the  doctrines  which  he  is  set- 
ting forth.  His  assumption  that  the  content  of  natural 
law  is  to  be  gathered  in  part  from  the  opinions  of 
such  men  affords  a  plausible  ground  for  the  incorpo- 
ration of  all  this  matter ;  but  to  the  modern  mind  it 
seems  like  a  barren  display  of  learning,  not  more 
useful,  save  as  an  evidence  of  a  transformation  in 
taste,  than  the  elaborate  citations  from  obscure  saints, 
jurists  and  theologians  which  burden  the  pages  of  the 
Schoolmen.1 

The  most  influential  and  characteristic  principles 
in  the  philosophy  of  Grotius,  so  far  as  it  touches 
political  theory,  may  be  grouped  under  the  three 
heads,'  the  law  of  nature,vthe  law  of  nations,  and 
^sovereignty  and  government;  under  these  three 
heads,  therefore,  we  may  now  proceed  to  consider 
them. 

1  How  little  is  lost  to  the  power  of  the  Law  of  War  and  Peace  by 
the  omission  of  these  quotations,  may  be  judged  from  Whewell's 
abridged  translation. 


164  POLITICAL  THEORIES 

3.   The  Law  of  Nature 

Grotius' s  conception  and  treatment  of  the  law  of 
nature  embody  no  features  that  had  not  already 
appeared  in  the  systems  of  other  philosophers.  He 
presented  a  far  less  profound  and  exhaustive  dis- 
cussion of  the  subject  than  that  of  Suarez,  for  in- 
stance. But,  on  the  other  hand,  the  spirit  and  method 
of  the  Dutch  jurist  were  far  better  calculated  to 
make  fruitful  the  practical  application  of  the  theory. 
His  point  of  view  was  more  that  of  pagan  antiquity 
than  of  later  philosophy —  of  Cicero  rather  than 
Aquinas.  Hence,  though  he  failed  to  solve  the  ulti- 
mate problems  of  metaphysics  and  logic  which  were 
revealed  by  the  subtlety  of  the  Scholastics,  he  suc- 
ceeded in  formulating  a  moral  and  political  doctrine 
that  admirably  satisfied  the  demand  of  enlightened 
minds  to  whom  the  theological  system  had  become 
distasteful. 

A  suggestion  of  Grotius's  general  tendency  is  dis- 
cernible in  his  employment  of  ius  naturale  rather  than 
lex  naturalis  to  designate  the  law  of  nature.  All  the 
effort  which  Suarez  expended  in  proving  that  this 
law  was  statutory  —  a  command  of  God,  conforming 
in  all  respects  to  the  most  rigid  conception  of  lex  — 
was  ignored  by  Grotius.  'Conceding  that  natural 
law  and  rights,  like  all  human  relations,  might  be 
regarded  as  willed  by  the  Creator,1  Grotius  looked 
upon  the  system,  however,  as  primarily  and  imme- 
diately a  product  of  human  reason  rather  than  of 

1  Prolegomena,  12. 


THE  LAW  OF  NATURE  165 

any  will.  He  recurred  to  an  ancient  conception  in 
classifying  all  law  as  (1)  natural  and  (2)  volitional 
(ius  voluntarium^),  and  he  treated  the  terms  as  ex- 
clusive of  each  other.  In  the  former,  reason  was  the 
characteristic  element ;  in  the  latter,  will :  but  obli- 
gation attached  no  more  strictly  to  the  one  than  to 
the  other.  Grotius  chose  deliberately  the  former 
species  of  law  as  the  field  of  his  investigations  and 
looked  to  the  cultivation  oj;  this  field  as  the  noblest 
work  of  jurisprudence.2  v 

The  law  of  nature  he  defines  as  "  the  dictate  of 
right  reason,  indicating  that  any  act,  from  its  agree- 
ment or  disagreement  with  the  rational  nature,  has 
in  it  moral  turpitude  or  moral  necessity." 3  QLcts 
falling  within  this  category  are  right  or  wrong  per  se, 
and  are  thus  distinguished  from  those  acts  which 
become  right  or  wrong  because  expressly  commanded 
or  forbidden  by  human  or  divine  authority  y  This 
natural  law  is  absolutely  immutable,  so  that  it  cannot—- 
be changed  by  God  himself.4  That  the  Almighty 
should  make  right  that  which  is  by  virtue  of  reason 
wrong,  is  as  inconceivable  as  that  he  should  make 
twice  two  something  other  than  four.  In  the  fact 
that  man  is  endowed  with  the  power  of  reason  lies 
the  clue  to  an  infallible  moral  guide.  This  is  the 

1  The  term  commonly  used  by  preceding  philosophers  was  ius 
positivum. 

2  Prolegomena,  31,  32. 

8  Ius  naturale  est  dicta  turn  rectse  ration  is,  indicans  actui  alicui,  ex 
eius  convenientia  aut  disconvenientia  cum  ipsa  natura  rationali  inesse 
moralem  turpitudinern  aut  necessitatem  moralem.  —  I,  i,  10,  1. 

4  Est  autem  ius  naturale  adeo  immutabile  ut  ne  a  Deo  quidem 
mutari  queat.  —  I,  i,  10,  5. 


166  POLITICAL  THEORIES 

possession  of  man  by  virtue  of  his  humanity,  not  the 
peculiar  privilege  of  any  particular  race  or  people. 
It  is  in  some  sense  independent  of  all  conception  of 
a  supernatural  power.  The  rational  nature  would 
guide  men  even  if  there  were  no  God,  or  if  he  had 
no  interest  in  mortal  affairs.1  That  God  has  in  fact 
bestowed  a  revelation  of  his  will  upon  certain  men, 
does  not  place  these  above  others  so  far  as  natural 
reason  is  concerned.  Pagans,  infidels  and  atheists 
are  thus  all  enabled  to  stand  on  the  platform  con- 
structed by  Grotius.  Yet  the  philosopher  is  himself, 
as  already  stated,  a  devout  Christian  and  thie  his 
whole  work  abundantly  shows. 

The  dissociation  of  natural  law  from  Eevelation, 
and  especially  thje  assertions,  just  referred  to,  as  to  its 
independence  9!  God's  will,  drew  upon  Grotius  the 
lively  ire  of  ./the  narrower  theologians  of  all  sects, 
and  on  the  other  hand  gave  great  stimulus  to  the 
rationalizing  spirit  of  the  times.  Despite  his  thor- 
oughly religious  and  Christian  attitude,  his  ethical 
philosophy  was,  in  fact,  essentially  that  which  was 
developed  by  Plato,  the  Stoics  and  Cicero.  He  was 
wholly  aware  of  the  broad  underlying  trend  of  his 
system.  In  the  Introduction  to  his  work  he  dwells 
upon  this  subject  at  length,  declaring  his  purpose 
to  establish  a  new  science  on  that  foundation  of 
rights  and  justice  which  is  to  be  discovered,  not 
in  the  fluctuating  dictates  of  local  or  temporary 
expediency,  but  in  the  essential,  universal  and  un- 
changeable quality  of  human  nature.  His  primary 

1  Prolegomena,  11. 


THE  SOURCE  OF  LAW  167 

( 

assumption  is  Aristotle's,  that  man  is  a  political  or 
social  being,  irresistibly  impelled  to  live  in  inter- 
course with  his  kind.  The  power  to  reason  —  to 
generalize  —  is  also  inherent  in  human  nature,  dis- 
tinguishing men  from  other  animals.  The  test  of  j 
Tightness  in  human  conduct,  therefore,  is  rational  j 
conformity  to  the  needs  of  social  existencef^No  in- 
dividual and  no  nation  can  predicate  moral  excellence 
of  that  conduct  which  conduces  merely  to  an  imme- 
diate and  individual  advantage.)  Self-interest,  regard- 
less of  the  interest  of  other  men,  is  no  rational 
criterion  of  right  and  wrong,  just  and  unjust.  Society 
—  humanity  —  would  be  impossible  under  such  a 
standard.  The  prescriptions  of  a  wider  code  are 
inevitably  implied  in  the  existence  of  the  race,  and 
whatever  reason  shows  to  belong  to  that  code  is  the 
content  of  natural  law. 

Grotius  thus  places  himself  solidly  in  opposition  to 
the  doctrine  of  which  he  takes  Carneades  as  the 
ancient  mouthpiece  and  of  which  Hobbes  was  within  a 
few  years  to  become  so  powerful  a  champion,  that  all 
law,  justice  and  rights  have  their  ultimate  source  in 
utility  or  expediency.  Of  civil  laws  and  the  rights  \ 
based  thereon  —  that  is,  the  law  of  any  particular 
state  —  utility,  he  admits,  may  be  the  occasion ;  but 
the  came  is  to  be  found,  proximately  in  the  compact 
by  virtue  of  which  any  particular  state  exists,  and 
more  remotely  in  the  natural  impulse  that  renders 
social  life  inevitable,  and  the  rational  inference  from 
this,  that  compacts  are  not  to  be  violated.  Hu- 
man nature  and  reason,  thus,  constitute  the  original 


168  POLITICAL  THEORIES 

fountain  of  all  laws ;  utility  is  accessory ;  men  form 
and  maintain  societies  because  it  is  their  nature  to 
do  so,  whether  it  is  to  their  interest  or  not,  though  the 
special  character  of  their  social  life  is  shaped  by  con- 
siderations in  which  interest  and  expediency  play  a 
large  part.1  Civil  law,  in  other  words,  is  immovably 
rooted  in  the  law  of  nature. 

The  plan  and  purpose  of  The  Law  of  War  and 
Peace  did  not  require  an  exhaustive  treatment  of 
natural  law  in  all  its  aspects.  Grotius  aimed  only  to 
set  forth  the  relation  of  this  law  to  the  purposes, 
methods  and  results  of  war.  But  even  this  restricted 
design  brought  under  discussion  in  fact  substantially 
all  the  important  topics  of  social  and  political  ethics. 
He  had  to  demonstrate  that  war  was  in  accord  with 
natural  law,  under  the  principle  of  self-preservation  ; 2 
to  determine  the  extent  to  which  war  by  subjects 
against  sovereigns  was  rational ; 3  to  define  the  right 
of  private  property  in  things  and  its  incidents,4  and 
the  extent  and  incidents  of  rights  over  persons,  in- 
cluding the  questions  of  government,  marriage  and 
slavery  ; 5  and  he  had,  finally,  to  lay  down  the  broad 
principles  of  the  obligation  of  promises  and  contracts.6 
On  the  basis  of  the  conceptions  on  these  fundamental 
topics  which  he  found  derivable  from  nature  itself  he 
proceeded  to  classify  and  judge  the  practices  which 
prevailed  in  the  conduct  of  war,  and  to  formulate  con- 
clusions which  should  rationalize  and  humanize  them. 


1  Prolegomena,  16  et  seq.  2  Lib.  I,  cap.  ii;  cf.  II,  i. 

8  Lib.  I,  cap.  iv.  4  Lib.  II,  cap.  ii  et  seq. 

6  Ibid.,  cap.  v.  6  Ibid.,  cap.  xi-xii. 


THE  LAW  OF  NATURE  169 

That  Grotius's  fixed  and  eternal  law  of  nature 
embodies  merely  his  own  personal  ideal  —  wise  and 
noble,  indeed,  but  nevertheless  purely  subjective  —  of 
the  principles  which  would  conduce  most  to  the  hap- 
piness of  mankind,  is  apparent  from  his  own  treat- 
ment of  the  sources  and  the  classification  of  these 
principles.  The  basis  of  the  ius  naturce  he  places  in 
notions  which  are  so  certain  that  no  one  can  deny 
them  without  violence  to  his  own  nature  —  as  clear 
to  every  man  as  what  he  perceives  by  his  senses.1 
But  it  requires,  as  Grotius  himself  admits,  a  proper 
condition  of  the  organs  of  sense,  as  well  as  other 
necessary  prerequisites,  in  order  that  knowledge  given 
by  the  senses  be  not  deceptive  :  hence  not  every  man, 
but  only  the  perfect  or  normal  man,  is  immediately 
conscious  of  the  truths  of  natural  law,  and  the  stand- 
ards of  perfection  or  normality  must  be  as  diverse  as/ 
individuals  themselves.  It  is  perhaps  with  some  con- 
sciousness of  the  difficulty  here  that,  in  proving  his 
doctrine  as  to  the  true  rights  of  war  and  peace,  Grotius 
resorts  also  to  the  opinions  of  philosophers  and  the 
testimony  of  historians.2  A  general  harmony  among 
the  best  minds  of  all  times  and  places  as  to  a  given 
theory  or  practice  must  spring,  he  argues,  from  a 
cause  of  equal  generality.  This  cause  must  be  either 
that  the  accepted  view  is  a  necessary  deduction  from 

1  Principia  enim  eius  iuris,  si  modo  animum  recte  advertas,  per  se 
patent  atque  evidentia  sunt,  ferme  ad  modum  eorum  quae  sensibus 
externis  percipimus ;  qui  et  ipsi,  bene  conf ormatis  sentiendi  instru- 
mentis,  et  si  cetera  necessaria  adsint,  non  fallunt.  —  Prolegomena,  39. 

2  He  includes  also  poets  and  orators,  but  admits  that  the  dicta  of 
these  classes  are  employed  chiefly  for  ornament.    Prolegomena,  47. 


170  POLITICAL  THEOKIES 

the  principles  of  nature  or  that  it  is  the  deliberate 
choice  of  all  men.  In  the  former  case  the  view  falls 
properly  under  the  law  of  nature  ;  in  the  latter,  under 
the  law  of  nations  (ius  gentium).1  The  tendency  to 
confuse  these  two  distinct  bodies  of  ius  is  censured 
by  Grotius ; 2  but  the  chief  value  of  the  distinction 
which  he  seeks  so  laboriously  to  maintain  seems  to  lie 
in  the  facility  it  affords  for  sheltering  his  own  opin- 
ions under  the  more  dignified  category  of  natural  law. 
Thus  of  two  institutions  which  have  equally  wide  sup- 
port in  the  approval  of  philosophers  and  historians, 
the  one  which  he  regards  as  reasonable  will  be  part 
of  the  immutable  law  of  nature,  while  that  which 
does  not  satisfy  his  judgment  will  be  relegated  to  the 
inferior  position  of  mere  ius  gentium. 

He  provides,  moreover,  in  the  further  explication 
of  natural  law  itself,  for  great  latitude  in  the  admis- 
sion of  contradictory  principles  within  the  concep- 
tion. Ius  naturale  is  of  two  kinds,  (1)  pure  (merum) 
and  (2)  peculiar  to  certain  circumstances  (prcecepta 
quce  pro  certo  statu  sunt  naturalid).  The  former 
characterizes  the  primitive  state  of  nature,  which  is 
assumed  to  have  existed  prior  to  political  association, 
and  the  latter  characterizes  the  period  of  fuller 
development,  though  it  precedes  all  civil  law.3 
Through  this  simple  distinction4  Grotius  is  able  to 

1  Prolegomena,  40. 

2  The  tendency  was  as  old  as  the  Roman  imperial  jurists.     Cf. 
Political  Theories,  A  ncient  and  Mediaeval,  p.  128.     Also  see  Voigt,  Das 
Ius  Naturale,  Vol.  I,  pp.  314-315,  423  et  seq. 

»  Cf.  II,  viii,  1  and  26. 

4  The  distinction  is  by  no  means  original  with  Grotius,  but  is  to 
be  found  in  all  treatises  on  natural  law  from  Aquinas  down. 


r 


LAW  171 

bring  both  community  of  goods  and  private  property 
under  the  head  of  the  law  of  nature,  and  in  numerous 
other  instances  to  justify  as  "  natural"  institutions 
as  diverse  essentially  as  barbarism  and  civilization. 
The  hypothetical  immutability  of  the  ius  naturale 
loses,  through  this  method,  all  power  to  restrict  the 
subjective  judgments  of  the  philosopher. 

4.    The  Law  of  Nations 

In  the  distinction  just  noticed  between  ius  naturale 
and  ius  gentium  Grotius  stood  on  practically  the 
same  ground  with  Suarez.1  The  latter  had,  more- 
over,  indicated  clearly  enough  that  content  for  ius 
gentium  which  was  the  basis  of  international  law. 
But  Grotius,  approaching  the  subject  from  the 
special  standpoint  of  the  warlike  relations  of  nations 
to  one  another,  proceeded  in  fact  to  develop  far  more 
fully  than  either  Suarez  or  any  other  predecessor  all 
the  principles  of  international  relationships,  whether 
of  war  or  of  peace.  Under  the  influence  of  his  ex- 
ample the  meaning  of  ius  gentium  soon  became  nar- 
rowed from  "  the  law  common  to  all  or  many 
nations"  to  "the  law  governing  the  intercourse 
between  nations.'* 

In  early  Roman  usage  the  term  ius  gentium  had 
applied  to  the  institutions  of  private  rather  than 
public  law  —  to  the  customs  in  relation  to  property, 
contracts,  marriage,  etc.,  that  prevailed  among  peoples 
not  included  within  Roman  citizenship.  When 
under  the  Empire  practically  all  these  peoples  be- 

i  Supra,  p.  140. 


172  POLITICAL  THEORIES 

came  Koman  citizens  and  the  dual  system  of  law 
became  unified,1  ius  gentium  survived  as  the  designa- 
tion of  an  ideal  hardly  distinguishable  from  ius 
naturale.  Mediaeval  jurisprudence,  however,  found 
in  the  diversity  of  peoples  and  institutions  in  Europe 
conditions  strongly  suggestive  of  those  under  which 
ius  gentium  had  originally  come  into  existence,  and 
hence  manifested  a  tendency  to  revert  to  the  original 
meaning  of  the  term.  But  at  the  same  time,  because 
the  field  of  private  rights  was  so  entirely  covered  by 
the  prescriptions  of  divine  and  natural,  canon  and 
civil  law,  ius  gentium  was  often  conceived  to  apply 
particularly  to  the  customs  that  characterized  the 
intercourse  of  communities  rather  than  of  indi- 
viduals, and  especially  of  independent  political  com- 
munities. War  was  the  preeminent  feature  of  this 
intercourse  in  fact,  and  hence  the  practices  of  war 
became  a  prime  element  in  the  ius  gentium.  Scho- 
lastic conceptions  on  this  matter  were  largely  influ- 
enced by  a  passage  compiled  from  the  Roman  jurists 
and  transmitted  by  Isidore  of  Seville,  in  which  ius 
gentium  was  so  defined  as  to  cover  the  broad  prin- 
ciples of  international  relationships  in  war,  but  was 
distinguished  from  ius  militare  y  which  concerned  it- 
self with  the  more  technical  military  incidents  of 
hostilities.2  This  distinction,  however,  was  by  no 

1  Political  Theories,  Ancient  and  Mediceval,  p.  128. 

2  Ius  gentium  est  sedium  occupatio,  sedificatio,   munitio,   bella, 
captivitates,  servitutes,  postliminia,  fcedera,  paces,  inducise,  legatorum 
non  violandorum  religio,  connubia  inter  alienigenas  prohibita,  et  inde 
ius  gentium  quod  eo  iure  omnes  fere  gentes  utuntur.     Ius  militare 
est  belli  inferendi  solennitas ;  fcederis  faciendi  nexus;  signo  dato 


THE  LAW  OF  WAR  173 

means  closely  observed  by  mediaeval  philosophy 
when  the  subject  began  to  be  discussed.  Under  the 
influence  of  the  conflicts  between  Christians  and 
Saracens  various  religious  and  ethical  aspects  of 
warfare  received  attention  from  ecclesiastics  and 
jurists  in  the  thirteenth  century,  and  were  systemat- 
ically presented  by  Aquinas  in  his  Summa  Theo- 
logica.1  These  were  combined,  during  the  next  two 
centuries,  with  a  multitude  of  technical  military 
topics  in  treatises  on  war  which  were  written  chiefly 
by  Italians.2  In  the  sixteenth  century  the  great 
Spanish  jurists,  as  we  have  seen,3  continued  the  de- 
velopment of  this  subject  from  the  traditional  point 
of  view,  while  Bodin,4  in  a  broader  philosophical 
spirit,  sketched  the  outlines  of  the  new  science  to 
which  Grotius  was  to  give  an  independent  character. 
The  immediate  predecessor  of  Grotius,  however,  in 
the  discussion  of  the  law  of  war  was  Alberico  Gentili, 
an  Italian  Protestant  who  became  professor  of  law  at 
Oxford.5  To  this  jurist,  among  others,  Grotius  fully 
acknowledges  his  indebtedness ; 6  and  in  fact  the 

egressio  in  hostem  vel  pugnfe  commissio ;  item  signo  dato  receptio ; 
item  flagitii  militaris  disciplina  si  locus  deseratur ;  .  .  .  item  praedae 
decisio  et  pro  personarum  qualitatibus  et  laboribus  iusta  divisio  ac 
principis  portio.  —  Etymohgice,  V,  6.  Of.  Carlyle,  History  of  Mediae- 
val Political  Theory,  p.  109. 

1 II,  2,  40. 

2  A  concise  account  of  these  is  given  by  Holland  in  his  Studies  in 
International  Law,  p.  40  et  seq.  Cf.  Nys,  Le  Droit  de  la  guerre  et  les 
precurseurs  de  Grotius. 

8  Supra,  p.  134. 

4  Cf.  esp.  De  Republica,  Lib.  V,  cap.  vi. 

6  For  particulars  about  Gentili  see  Holland,  Studies  in  International 
Law,  p.  1  et  seq. 

6  Prolegomena,  38. 


174  POLITICAL  THEORIES 

Dutch  writer  had  only  to  round  out  the  sketch  which 
his  predecessor  had  supplied.  Gentili  (Latinized, 
Gentilis)  dropped  from  the  ius  belli  all  the  purely 
military  topics  that  had  appeared  in  the  earlier 
treatises,  and  Grotius  added  to  the  residuum  so  large 
a  mass  of  cognate  topics  as  fairly  to  justify  the 
identification  of  his  work,  though  it  still  retained  the 
title  of  ius  belli,  with  the  ius  gentium  as  defined  by 
Isidore.1 

In  Grotius' s  classification  the  law  of  nations  (ius 
gentium)  falls  under  the  head  of  human  and  voli- 
tional law  (ius  humanum  voluntarium).  Its  content  is 
what  has  been  accepted  as  obligatory  by  the  consent 
of  all  or  of  many  nations.2  What  is  included  under^ 
it  is  proved  by  constant  usage  and  the  testimony  of 
the  learned  (testimonies  peritorum).  The  occasion  for' 
such  a  body  of  rights  is  the  welfare  of  that  aggregate 
which  includes  all  or  many  nations,  just  as  the  occa- 
sion for  civil  law  is  the  welfare  of  the  aggregate 
which  consists  of  many  individuals.^  No  more  in  the 
case  of  a  nation  than  in  the  case  of  an  individual  can 
regard  for  self-interest  alone  conduce  to  the  highest 
welfare.3  ^  Yet  it  is  not  in  the  inevitable  benefit  that 
ensues,  but  in  the  natural  impulse  to  social  life,  that 
Grotius  places  the  ultimate  source  of  the  obligation 
to  observe  the  law  of  nations.  All  mankind,  or  at 

1  Holland  criticises  Grotius  for  injecting  the  whole  of  the  law  of 
nations  into  a  work  on  the  law  of  war.     Studies,  p.  58. 

2  Quod  gentium  omnium  aut  multarum  voluntate  vim  obligandi 
accepit.  —  I,  i,  14, 1. 

8  Populus  iura  naturae  gentiumque  violans  suse  quoque  tranquilli- 
tatis  in  posterum  rescindit  muuimeuta.  —  Prolegomena,  18. 


KINDS  OF  IUS  GENTIUM  175 


least  the  great  part  of  it,  constitutes  a  society  of 
peoples  for  which  the  rule  of  a  general  law  is  indis- 
pensable.1 

Despite  the  effort  of  Grotius  to  discriminate  be- 
tween the  law  of  nature  and  the  law  of  nations,  his 
failure  is  clear  from  the  outset,  and  becomes  progres- 
sively more  obvious  as  his  system  is  developed  into 
its  detail.  Theoretically,  what  is  rationally  consistent 
with  human  nature  would  be  the  criterion  of  the  one, 
and  what  is  in  use  among  all  nations  the  criterion  of 
the  other.  But,  as  we  have  seen,  the  rationality  of 
a  precept  is  in  last  analysis  a  matter  merely  of  the 
private  judgment  of  the  philosopher;  and  similarly, 
in  the  case  of  the  practice  of  nations,  since  uniformity 
and  universality  are  not  deemed  discoverable,2  the 
usages  which  constitute  the  ius  gentium  must  be 
those  of  the  nations  which  in  the  judgment  of  the 
philosopher  are  worthy  of  respect  and  imitation. 
But  not  even  all  the  practices  of  such  nations  are  to 
be  recognized  as  valid  ius  ;  for  Grotius  takes  pride  in 
his  distinction  between  those  which  create  true  rights 
and  those  which  merely  produce  some  external  effect 
similar  to  that  of  true  rights,3  and  also  between  those 
which  are  merely  common  to  many  peoples  and  those 
which  are,  in  addition,  essential  to  the  bond  of 
human  society.4  The  net  result  of  all  this  elasticity 

1  Certe  et  ilia  [societas]  quse  genus  humanum  aut  populos  com- 
plures  inter  se  colligat,  iure  indiget.  —  Prolegomena,  23. 

2  Except  in  some  matters  which  Grotius  says  belong  to  the  law  of 
nature,  not  of  nations.     "  Vix  ullum  ius  reperitur  extra  ius  naturale 
.  .  .  omnibus  gentibus  commune."  —  I,  i,  14,  1. 

8  Prolegomena,  41.  4  II,  viii,  26. 


176  POLITICAL  THEORIES 

and  vagueness  in  the  ultimate  standards  of  both 
natural  and  international  law  is  to  obliterate  all  dis- 
tinction between  them  and  to  justify  the  tendency, 
which  grew  continually  more  manifest  after  Grotius, 
to  blend  the  two  systems  into  one,  resting  upon  no 
deeper  an  ultimate  foundation  than  the  opinions  of 
publicists,  among  whom  Grotius  himself  always  held 
a  first  place. 

It  is  not  within  the  scope  of  our  study  to  follow 
out  the  doctrines  of  Grotius  as  to  the  details  of  the 
ius  gentium.  A  few  instances  of  his  views  may  serve 
to  illustrate  some  of  the  statements  in  the  foregoing 
paragraphs. 

War  is  regarded  by  Grotius  as  just  when  it  is 
undertaken  in  defence  of  person  or  property.  The 
question  then  arises  whether  the  taking  up  of  arms 
against  a  power  which  is  developing  so  as  to  become 
dangerous,  but  has  not  yet  become  so,  is  permitted 
by  ius  gentium}  Grotius  answers  with  a  decided 
negative.  Gentilis  is  equally  emphatic  in  the  af- 
firmative. In  such  a  disagreement  of  authorities 
the  real  law  of  nations  becomes  difficult  to  deter- 
mine;, but  certainly  if  the  mere  practice  of  nations, 
apart  from  any  other  criterion,  were  to  decide,  Gen- 
tilis would  appear  to  be  correct.  Yet  Grotius  might 
fall  back  on  his  distinctions,  and  claim  that  peoples 
who  had  resorted  to  this  practice  were  not  the  better 
kind  of  peoples,  or  that  such  usage  belonged  to  ius 
gentium  merum,  and  not  to  the  species  which  is 
essential  to  the  society  of  nations.  . 

i  II,  i,  17. 


UNCERTAINTY  OF  IUS  GENTIUM         177 


This  latter  species  is  very  hard  to  distinguish 
from  some  kinds  of  ius  naturak.  Grotins  holds,  for 
example,  that  seizing  a  subject  for  the  debt  of  his 
state  is  not  contrary  to  nature,  but  he  supports  his 
judgment,  not  on  reason,  but  on  the  practice  of  the 
Greeks  and  others  as  against  the  custom  of  the  Egyp- 
tians.1 And  again,  the  rule  that  property  taken  in  a 
war  against  pirates  or  by  a  king  in  a  war  with  his 
subjects  belongs  to  the  captor,  is,  according  to  Grotius, 
a  precept  of  natural  law,  and  not,  as  Ayala  holds, 
of  the  law  of  nations.2  But  the  use  of  poison  in  kill- 
ing one's  enemies,  while  permitted  by  natural  law,  is 
forbidden  by  the  law  of  nations,  or  at  least  by  the 
law  of  the  better  nations.3  And  in  speaking  of 
poisoned  missiles,  the  "  better  nations  "  become  more 
definitely  the  "nations  of  Europe,"  and  even  more 
narrowly  the  better  part  of  these.4 

Though  the  division  line  between  ius  naturale  and 
ius  gentium  is  thus  at  times  very  obscure,  the  impor- 
tance of  discerning  it  is  enormous ;  for  grave  violation 
of  the  ius  naturale  is  good  cause  for  war,  while  a 
mere  failure  to  conform  to  the  customs  of  even  the 
best  nations  can  hardly  be  so  regarded.  Grotius 
perceives  the  danger  of  confounding  differences  of 
custom  with  violations  of  natural  law,  and,  with  an 
apt  quotation  from  Plutarch,  cautions  against  wars 
in  which  the  announced  purpose  of  civilizing  a  people 
is  a  mere  pretext  to  cover  cupidity.5 

*  III,  ii,  3,  1.  2  HI,  iii,  12. 

8  Ius  gentium,  si  non  omnium,  certe  meliorum.  —  III,  iv,  15,  1. 
4  Ius  gentium  non  universale  sed  gentium  Europsearum  et  siquse  ad 
Europe  melioris  cultum  accedunt.  —  III,  iv,  16, 1.  6  II,  xx,  41. 


VOL.   II. 


178  POLITICAL  THEORIES 

Finally,  the  views  of  Grotius  on  slavery  throw  an 
interesting  light  on  his  treatment  of  the  two  kinds 
of  law  and  rights.  No  man  is  a  slave  by  nature  — 
"  nature  "  meaning  "  prior  to  some  act  of  man  or  in 
the  primeval  state  of  nature " ; l  but  the  establish- 
ment of  the  servile  condition  by  compact,  or  as  a 
penalty  for  delict,  is  wholly  in  accordance  with 
natural  law.  Hence  one  who  becomes  a  slave  by 
failing  to  pay  his  just  debts,  or  as  a  punishment  for 
his  own  crime,  is  a  slave  ex  iure  naturale.  But  the 
enslavement  of  captives  in  war  —  even  the  innocent 
and  those  who  have  not  surrendered  —  falls  under 
the  ius  gentium.  It  is  a  custom  introduced  for  the 
purpose  of  mitigating  the  rigours  of  war  —  i.e.  is  a 
substitution  of  servitude  for  death.  But  while  Gro- 
tius feels  bound  to  recognize  this  slavery  as  of  the 
law  of  nations,  he  clearly  feels  some  pangs  about  it. 
He  points  out  that  it  has  never  been  a  universal 
i  usage,  and  that  Christians  do  not  enslave  Christian 
captives,  nor  Mohammedans,  Mohammedan  captives. 
And  in  connection  with  the  subject  he  introduces 
one  of  his  most  useful,  but  scientifically  most  suicidal, 
distinctions.  There  are  many  rights,  he  says,  which 
are  such  only  from  the  point  of  view  of  external 
judgment  and  not  from  that  of  their  internal  nature. 
The  right  of  enslaving  innocent  captives  in  war  is  a 
right  (ius)  as  to  certain  of  its  effects,  but  not  intrin- 
sically.2 It  is  one  of  that  class  of  acts  which  are 

1  ...  citra  factum  humanum  aut  primaevo  naturae  statu.  —  III, 
vii,  1, 1. 

2  III,  vii,  6,  4. 


ORIGIN  OF  THE  STATE  179 

called  right  because  they  may  be  done  with  impunity, 
not  because  they  fall  in  the  category  of  ius  strictly 
so  called.1  In  other  words,  Grotius  distinguishes 
between  what  are  now  known  as  legal  and  moral 
rights,  but  insists  upon  applying  the  term  ius  indis- 
criminately to  both.  It  is  in  neglecting  to  observe 
consistently  the  distinction  between  these  that  much 
of  the  obscurity  and  uncertainty  is  created  in  his 
conceptions  of  law  of  nature  and  law  of  nations. 

5.    Theory  of  the  State  and  of  Sovereignty 

As  has  already  been  said,  the  more  purely  political 
doctrines^  of  Grotius  were  incidental  to  his  ethical 
and  juristic  theories ;  but  though  this  treatment  of 
the  ideas  of  state  and  sovereignty  was  subordinate  to 
that  of  the  law  of  nature  and  of  nations,  the  influ- 
ence of  his  views  has  been  scarcely  less  conspicuous 
in  the  one  field  than  in  the  other.  His  political 
theorizing  was  narrowly  limited  in  scope.  With  the 
art  of  government  —  the  questions  of  organization 
and  of  administrative  policy — he  had  nothing  to  do ; 
but  the  largest  conceptions  at  the  basis  of  the  theory 
of  the  state  he  was  obliged,  or  at  least  he  chose,  to 
treat  with  some  fulness. 

The  origin  of  political  associations,  as  conceived 
by  Grotius,  shows  a  curious  and  at  times  confusing 
blend  of  the  two  theories  which  he  declares  in  his 
Prolegomena  to  be  wholly  antithetical.  Both  the 
natural  impulse  to  social  life  and  the  deliberate  con- 
tract based  on  considerations  of  self-interest  figure  in 

i  III,  x,  1. 


180  POLITICAL   THEOKIES 

his  doctrine  as  to  political  beginnings.  Though 
primarily  his  philosophy  is  Aristotelian,  the  influence 
of  Roman  jurisprudence  and  of  leading  currents  in 
contemporary  thought  takes  him  into  the  lines  of  the 
contract  theory,  of  which  he  has  often  since  been 
represented  to  be  the  leading  advocate  and  even  the 
original  propounder.  Probably  the  true  character  of 
his  thought  was,  though  he  nowhere  distinctly  for- 
mulates it  thus,  that  while  society  is  due  to  natural 
instinct,  the  state  is  founded  in  contract.1  At  all 
events,  while  he  repeatedly  declares  social  life  to  be 
the  "  natural "  condition  of  man,  he  as  often  recurs 
to  the  idea  of  an  ante-political  "state  of  nature," 
both  as  a  logical  concept  and  as  an  historical  fact.2 
This  is  the  condition  of  man  in  which  the  pure  law 
of  nature  (merum  ius  naturce)  rules,  with  every  indi- 
vidual as  executor  of  his  own  rights  under  it;  for 
"public  tribunals  are  due  not  to  nature  but  to  the 
act  of  man." 3  By  nature  (naturaliter)  every  one  has 
a  right  to  resist  a  wrong ;  but  when  civil  society  has 
been  instituted  for  the  preservation  of  public  tranquil- 
lity, this  right  becomes  subject  to  the  prescriptions  of 
the  sovereign.4  Against  the  sovereign  the  right  of 
resistance  is  null,  for  the  reason,  among  others,  that 
those  who  instituted  civil  society  deliberately  willed 


1  He  uses  societas  and  civitas  with  some  evidence  of  a  distinction 
in  meaning. 

3  He  identifies  it  with  the  age  of  the  Cyclopes  and  the  Autoch- 
thones of  classic  fable  and  with  the  patriarchal  age  of  the  Scriptures. 

8  ...  iudicia  publica  non  a  natura  sed  a  facto  sunt  humano.  — 
I,  iii,  1,  2. 

4  I,  iv,  2. 


CONTRACT  AND  SOVEREIGNTY  181 

their  rights  to  the  holder  of  supreme  authority.1  It 
is  indeed  to  be  observed,  Grotius  says,  in  most  ex- 
plicit assertion  of  the  contract  theory,  "that  origi- 
nally men,  not  by  the  command  of  God,  but  of  their 
own  accord,  after  learning  by  experience  that  isolated 
families  could  not  secure  themselves  against  violence, 
united  in  civil  society,  out  of  which  act  sprang  gov- 
ernmental power."2  (Such  doctrine  clearly  justifies 
the  inclusion  of  Grotius  among  the  philosophers  of 
the  contract  school)  yet  his  teachings  on  this  point 
are  distinctly  subordinate  in  his  system,  and  he  lays 
no  such  stress  on  the  contract  as  the  anti-monarchic 
writers  of  the  generation  before  him  or  as  Hobbes 
and  Locke  ip  the  succeeding  generations. 

A  definite  theory  of  sovereignty  was  important  in 
Grotius's  system,  inasmuch  as  the  whole  doctrine  of 
public  as  distinct  from  private  war  hinged  on  the 
clear  determination  of  a  supreme  authority  in  a 
state.  His  long  discussion  of  this  subject3  reflects 
the  influence  of  Bodin  and  Suarez,  but  differs  widely 
from  each,  both  in  point  of  view  and  in  details. 
^  Sovereignty  he  defines  as  supreme  political  power 
(potestas  civilis),  meaning  by  "  political  power  "  that 
"moral  faculty  of  governing  a  state"  under  which 
are  included  functions  of  general  and  of  special  char- 

1  Haec  lex  [of  non-resistance]  pendere  videtur  a  voluntate  eorum 
qui  se  priraum  in  societatem  civilem  consociant,  a  quibus  ius  porro 
ad  imperantes  manat.  —  I,  iv,  7,  2. 

2  Notandum  est,  primo  homines  non  Dei  prsecepto,  sed  sponte  ad- 
ductos  experimento  infirmitatis  familiarum  segregum  adversus  vio- 
lentiam,  in  societatem  civilem  coiisse,  unde  ortum  habet  potestas 
civilis.  —  I,  iv,  7,  3. 

8  Lib.  I,  cap.  iii. 


182  POLITICAL  THEORIES 

acter,  of  public  or  primarily  of  private  interest,  and 
functions  performed  either  by  the  sovereign  immedi- 
ately or  by  persons  commissioned  by  him.  This 
supreme  power  is  said  to  be  vested  in  him  whose  acts 
are  not  subject  to  the  rights  of  any  other,  and  cannot 
be  rendered  null  by  any  other  human  will.1  In  a 
broad  sense  the  holder  of  sovereignty  is  the  state 
(civitas),  but  specifically  the  holder  (subjectum  pro- 
prium)  is  one  or  more  persons  designated  by  the  law 
or  custom  of  the  people.  It  is  with  the  latter  of 
the  two  senses  that  Grotius  concerns  himself  almost 
exclusively,  and  in  the  development  of  his  thought 
on  juristic  lines  the  sovereign  power  takes  definitely 
the  form  of  a  right  —  the  ius  regendi  or  imperandi,  as 
he  frequently  calls  it  —  attaching  to  a  person  or  per- 
sons like  any  private  right,  and  subject  to  similar 
rules.  J  Thus  sovereignty  may  be  possessed,  he  holds, 
like  a  piece  of  land  or  a  right  of  way,  either  in  full 
ownership,  in  usufruct,  or  for  a  limited  term  only. 
The  conqueror  in  a  just  war  holds  it  pleno  iure  ;  most 
elected  and  hereditary  kings,  in  usufruct ;  and  such 
officers  as  the  Roman  dictator,  for  a  limited  term.2 
As  against  the  wholly  different  doctrine  of  Bodin,8 
Grotius  contends  that  these  various  forms  of  holding 
the  supreme  power  imply  no  distinction  in  the  es- 
sence of  the  concept ;  between  the  holder  iure  pleno 
proprietatis  and  the  holder  iure  temporario  there  may 

1  Summa  ilia  dicitur  cuius  actus  alterius  iuri  non  subsunt,  ita  ut 
alterius  voluntatis  humanse  arbitrio  irriti  possint  reddi.  —  I,  iii,  7,  1. 

2  I,  iii.  11. 

8  Supra,  p.  97.     Grotius  does  not  mention  Bodin  in  this  place, 
however. 


GROTIUS  ON  SOVEREIGNTY  183 

be  a  difference  in  dignity  (maiestas),  but  there  is  none 
in  actual  power  (imperitcm)-,  each  is  alike  the  ulti- 
mate and  irresponsible  wielder  of  governmental 
authority.  Moreover,  Grotius  holds  that  sovereignty 
is  real  when  possessed  under  promises  made  to  God 
(by  oath)  or  to  subjects,  even  if  there  is  a  distinct 
stipulation  that  violation  of  the  pledge  shall  involve 
loss  of  the  power,  though  he  admits  that  there  is  in  a 
sense  a  limitation  here.1  And  finally,  the  supreme 
power,  though  in  itself  a  unit,  may  be  divided  in  pos- 
session; as,  for  example,  between  king  and  people.2 
It  is  not  strange,  after  so  peculiar  a  medley  of  contra- 
dictory attributes,  that  he  admits  protected  and  trib- 
utary powers  and  feudal  vassals  to  the  category  of 
sovereigns,  with  the  confession  that  there  seems  to 
be  in  their  cases  also  some  qualification  in  respect 
to  dignity.3 

That  Grotius's  conception  of  sovereignty  falls 
short,  in  respect  to  logical  precision  and  coherence, 
of  that  of  ;Bodin  and  Althusius,  is  self-evident.  A 
power  that  is  supreme,  yet  bound  by  pledges  ;  that  is 
at  once  a  unity  and  divisible ;  that  is  complete,  yet 
limited  to  usufruct  and  terminable  at  a  fixed  time ; 
and  that  inheres  equally  in  protector  and  protected, 
in  lord  and  in  vassal,  —  is  a  confusing  kind  of  con- 
cept. Much  of  the  obscurity  in  Grotius's  theory  is 
removed,  however,  when  we  view  his  doctrine  in 
the  light  of  two  purposes  which  run  through  all 
his  thought*,  first,  that  of  so  defining  sovereign  as 
to  determine  where  lies  the  criterion  of  public  and 

1 1,  iii,  16,  1  and  2.  2 1,  iii,  17, 1.  8  I,  iii,  21-23. 


184  POLITICAL  THEORIES 

formal,  as  distinct  from  private  and  informal,  wars ; 
and  second,  that  of  combating,  in  the  interest  of 
peace  and  public  order,  the  doctrines  of  popular 
sovereignty,  j  Not  only  the  custom  of  the  time,  but 
also  every  consideration  of  humanity,  warranted  the 
ascription  of  technical  regularity  to  the  wars  of  rulers 
possessing  less  than  the  widest  powers ;  and  the  rec- 
ognition of  sovereign  dignity  to  pretty  much  any 
kind  of  prince  was  an  obvious  support  for  the  general 
attitude  of  depreciation  in  respect  to  the  people. 

A  polemic  against  the  idea  that  the  sovereignty  of 
the  people  is  an  essential  principle  of  political  science 
occupies  a  prominent  place  in  Grotius's  work.1  A 
people,  he  holds,  may  choose  what  form  of  govern- 
ment it  will ;  but  having  chosen  the  full  monarchic 
or  aristocratic  form,  its  own  function  is  ended. 
Just  as  a  man  may  make  himself  a  slave,  as  appears 
from  the  Koman  and  the  Hebrew  law,  so  a  people  may 
irrevocably  transfer  to  one  or  more  persons  the  right 
of  governing  it.2  This  transfer  may  be  based  on  the 
best  of  reasons  —  dangers  so  imminent  as  to  warrant 
the  extremest  steps  to  avert  them.  Or,  Grotius 
argues,  the  subjection  may  depend  ultimately  on  the 
principle  which  Aristotle  laid  down  as  to  individuals 
who  are  by  nature  slaves :  there  are  peoples  also  who 
are  by  disposition  fit  only  for  subjection.3  Or  again, 

1 1,  iii,  8,  1  et  seq. 

2  Quidni  ergo  populo  sui  iuris  liceat  se  unicuipiam  aut  pluribus 
ita  addicere  ut  regendi  sui  ius  in  eum  plane  transcribat,  nulla  eius 
parte  retenta.  —  I,  iii,  8,  1. 

8  "  Populi  quidam  eo  sunt  ingenio  ut  regi  quam  regere  norint 
rectius." 


GROTIUS  ON  SOVEREIGNTY  185 

the  right  of  ruling  a  people  may  be  acquired,  like 
rights  of  private  property  (dominium  prwatum), 
through  just  war.  In  all  these  cases,  of  which 
history  furnishes  copious  illustration,  the  doctrine 
that  sovereignty  is  in  the  people  is  wholly  untenable. 
£And  no  less  so,  Grotius  continues,  is  the  doctrine 
that  the  end  of  all  government  is  the  good  of  the 
governed^  That  such  is  in  fact  the  end  very  often 
kept  in  view,  he  concedes ;  but  this  does  not  neces- 
sarily follow  from  the  nature  of  government,  and 
hence  it  affords  no  ground  for  the  contention  that 
the  people  are  above  their  rulers.1  A  monarch,  and 
especially  a  monarch  with  sovereignty  in  full  pro- 
prietorship, may  rule,  like  the  master  over  his  slaves, 
for  his  own  interest,  or,  like  the  husband  over  the 
wife,  for  the  joint  interest. 

The  right  of  governing,  in  short,  or  sovereignty, 
is  independent  in  all  respects  of  the  interest  or  the 
judgment  of  the  subjects.  Its  attributes  and  its  ap- 
plication are  closely  assimilated  by  Grotius  to  those 
of  private  property  (dominium),  and  it  may  even, 
he  holds,  be  transferred  by  sale  or  bequest,  though 
when  it  has  been  voluntarily  bestowed  on  any  one  by 
the  people,  he  conservatively  judges  that  the  right  of 
alienation  is  not  necessarily  to  be  presumed.  That 
this  patrimonial  conception  of  governmental  power  is 
inconsistent  with  liberty  and  makes  free  men  the 
subject  of  commerce,  he  denies  with  some  warmth. 

1  "  Non  nego  in  plerisque  imperils  respici  per  se  utilitatem  eorum 
qui  reguntur  .  .  .  sed  non  ideo  consequens  est  .  .  .  populos  rege  esse 
superiores." 


186  POLITICAL  THEORIES 

Personal  liberty  and  political  liberty,  he  argues,  are 
wholly  distinct  ideas ;  a  people,  like  an  individual, 
may  enjoy  the  one  to  the  fullest  extent,  but  lack  the 
other.  I  When  sovereignty  is  transferred,  the  tram 
action  has  for  its  subject,  not  men,  but  the  right 
governing  men.1  The  personal  freedom  of  the  peopli 
is  not  affected. 

With  such  a  theory  of  sovereignty  as  has  been  de- 
scribed, Grotius  could  hardly  be  expected  to  provide 
for  any  right  of  resistance  in  subjects.  They  have 
by  natural  law,  he  says,  no  recourse  against  wrongs 
received  from  a  sovereign.  A  command  that  is  in 
conflict  with  the  law  of  God  or  of  nature  must  not  be 
obeyed,  but  the  consequences  of  disobedience  must  be 
endured  without  resistance.2  Social  life  is  impossible 
on  any  other  basis.  Such  is  his  doctrine  as  to  un- 
questioned sovereigns  in  full  right.  For  other  cases 
he  works  out  a  scheme,  modelled  somewhat  on  Bar- 
clay, which  seems  at  some  points  to  trench  upon  his 
theory  of  sovereignty,  and  to  attribute  to  subjects 
rights  of  resistance  that  are  incompatible  with  the 
far-reaching  scope  of  the  ius  regendi.  As  to  usurpers,, 
even,  Grotius  inclines  to  hold  the  right  of  resistance 
to  be  very  limited  and  the  expediency  very  doubtful. 
Man  of  peace  as  he  always  shows  himself  to  be,  he 
nevertheless  feels  that  the  situation  is  grave  indeed 
when  a  choice  has  to  be  made  between  peace  and 
liberty.8 

1  Non  ipsi  homines  alienantur  sed  ius  perpetuum  eos  regendi,  qua 
populus  sunt.  —  I,  iii,  12,  1  and  2.  2  I,  iv,  1,  3. 

8  Prof  ecto  gravissima  cum  sit  deliberatio  libertas  an  pax  placeat.  — 
I,  iv,  19,  2. 


RELATION  TO  ABSOLUTE  MONARCHY  187 

6.    The  Place  of  Grotius  in  the  History  of  Political 

Theory 

The  foregoing  review  of  leading  features  of  The 
Law  of  War  and  Peace  confirms  the  statement  made 
at  the  beginning  of  the  chapter,  that  the  distinctive 
work  of  Grotius  was  rather  upon  the  foundations 
than  upon  the  superstructure  of  political  science.  In 
the  acute  analysis  of  governmental  organization  and 
policy,  such  as  was  made  by  Bodin  and  in  some  meas- 
ure by  Machiavelli,  Grotius  manifested  no  interest. 
Nor  was  this  attitude  inappropriate  in  a  work  dedi- 
cated with  fulsome  eulogy  to  Louis  XIII  of  France. 
For  just  in  proportion  as  the  idea  of  absolute  monarchy 
was  realized,  the  details  of  its  operation  were  removed 
from  the  field  of  philosophical  investigation,  and 
conclusive  demonstration  that  the  sovereign  monarch 
ought  to  conform  to  the  law  of  nature  and  of  nations 
was  looked  upon  as  an  adequate  substitute  for  curious 
inquiry  as  to  the  actual  extent  of  such  conformity. 
This  general  tendency  in  political  theory,  which  was 
destined  to  prevail  on  the  Continent  for  a  century, 
must  be  regarded  as  largely  due  to  the  Dutch  philos- 
opher. Not  that  he  was  in  any  sense  the  originator 
of  the  method ;  it  was  conspicuously  characteristic  of 
the  whole  scholastic  philosophy  and  of  the  theological 
jurists  who  transmitted  scholasticism  to  the  seven- 
teenth century.  What  Grotius  did  was,  to  give  to 
speculation  on  these  same  lines  a  character  that  was 
eminently  adapted  to  attract  the  more  liberal  and 
rationalistic  elements  among  the  Protestants  and  also 


188  POLITICAL  THEORIES 

the  devotees  of  the  new  learning  which  was  in  his  day 
dominant  in  the  intellectual  life  of  northern  Europe. 
He  thus  became  a  leader  of  thought  in  those  coun- 
tries which,  for  better  or  for  worse,  were  destined  to 
assume  the  chief  place  in  respect  to  political  activity, 
progress  and  influence. 

The  greatest  positive  contribution  of  Grotius  to 
political  science  was,  of  course,  his  formulation  of  a 
scheme  of  rights  and  duties  applicable  to  the  relations 
of  nation  to  nation.  In  this  achievement  he  con-  ' 
formed  very  exactly  to  the  manifest  needs  of  his 
time.  At  the  beginning  of  the  seventeenth  century 
the  last  principle  of  unity  that  had  retained  any  vital 
force  among  the  peoples  of  Europe  —  a  common 
religious  worship  —  had  disappeared.  Where  Chris- 
tianity had  previously  served  as  a  basis  for  the  recog- 
nition of  common  interests  and  common  duties,  at 
least  as  against  the  Turk,  two  groups  of  nations  now 
stood,  each  denying  to  the  other  the  name  of  Chris- 
tian. The  distinction  between  believer  and  infidel 
had  become  less  important  politically  than  that  be- 
tween Catholic  and  Protestant.  A  new  and  non- 
religious  ground  was  needed  for  international  rights 
and  duties.  Grotius  sought  and  found  this  in  the 
same  law  of  nature  that  had  served  a  similar  purpose 
in  the  days  of  Alexander  the  Great  and  of  the  Anto- 
nines.  Like  the  Hellenes  and  barbarians  of  the  earlier 
time,  and  the  Romans  and  provincials  of  the  later, 
the  divided  and  warring  peoples  of  western  Europe 
were  taught  that  they  had  common  rights  and  com- 
mon duties  under  the  sway  of  universal  nature  and 


THE  PLACE  OF  GROTIUS  189 

reason.  But  ancient  cosmopolitism  and  modern  inter- 
nationalism differed  from  each  other  in  the  respect 
which  is  indicated  by  the  names.  The  unit  of  the  \ 
one  was  the  individual  man  by  virtue  of  his  human-  ' 
ity ;  the  unit  of  the  other  was  the  politically  organized 
group  of  men  by  virtue  of  its  sovereignty.  It  was  / 
because  of  this  difference  that  the  ius  gentium  was  so 
prominent  by  the  side  of  the  ius  naturce  in  the  philoso- 
phy of  Grotius,  and  it  was  because  of  the  essential 
sameness  of  the  two  that  ultimately  the  former,  as  ius 
inter  gentes,  in  a  large  measure  supplanted  the  latter. 
/  By  his  doctrine  of  sovereignty  Grotius  wins  no 
special  place  in  the  development  of  political  theory. 
He  ranges  himself  with  Bodin,  Suarez,  Barclay  and 
the  other  advocates  of  monarchy,  and  hardly  strength- 
ens the  case  that  they  had  already  presented.  From  < 
the  scientific  point  of  view  his  influence  on  this  phase 
of  theory  was  distinctly  reactionary;  for  his  treat- 
ment of  sovereign  power  as  a  private  right,  subject 
to  the  rules  of  private  law,  introduced  an  element  of 
confusion  into  the  conception  that  has  been  perpetu- 
ated, under  the  influence  of  his  great  name,  to  the 
present  day.  Yet  there  can  be  no  doubt  that  his 
theory  had  a  very  plausible  support  in  the  conditions 
of  his  own  time,  when  the  growth  of  monarchy  out 
of  feudal  institutions  was  attended  by  many  sugges- 
tions of  a  patrimonial  interest  pertaining  to  the 
monarch. 

In  marked  contrast  with  the  character  and  ten- 
dency of  his  doctrine  as  to  sovereignty  stood  the 
implications  of  his  doctrine  as  to  the  state  of  nature 


190  POLITICAL  THEORIES 

and  the  contractual  origin  of  political  society.  On 
these  points  he  was  substantially  at  one  with  the 
anti-monarchic  writers.  His  whole  development  of 
natural  law,  moreover,  in  its  bearing  on  the  rela- 
tions of  sovereigns  to  one  another,  turned  largely  on 
the  principle  of  consent  and  compact,  which  was,  as 
we  have  seen,  the  mainstay  of  the  argument  for 
popular  sovereignty.  Despite  all  the  efforts  of  Gro- 
tius  to  avert  such  an  inference,  the  inference  by 
analogy  was  too  obvious  to  be  escaped,  that  the 
principles  of  contract  law  which  he  applied,  as  the 
law  of  nature,  to  the  intercourse  of  independent 
members  of  the  general  society  of  nations,  were 
equally  applicable  to  the  intercourse  of  independent 
members  of  any  particular  society  of  individuals. 
What  was  right  and  just  in  one  case  could  hardly 
be  denied  the  claim  to  righteousness  and  justice  in 
the  other.  Hence  it  was  that,  while  on  one  side  the 
work  of  Grotius  promoted  the  cause  of  absolute  mon- 
archy, on  the  other  side  it  was  a  source  of  much  aid 
and  comfort  to  the  advocates  of  limited  government. 
As  the  course  of  external  events  determined,  the 
former  element  in  his  doctrine  found  a  perfect  field 
for  its  application  on  the  Continent,  where  the  rela- 
tions of  the  absolute  monarchs  with  one  another 
afforded  ample  opportunity  for  the  development  of 
international  law.  The  second  element  of  his  doc- 
trine, on  the  other  hand,  found  its  immediate  appli- 
cation in  England,  where,  in  the  very  year  that  the 
De  lure  Belli  ac  Pads  appeared,  Charles  I  ascended 
the  throne.  The  dramatic  era  thus  begun  brought 


GROTIUS  AND  ENGLAND  191 

England  for  the  first  time,  at  least  since  Wycliffe, 
into  prominence  as  a  source  of  political  speculation, 
and  made  her  responsible  for  theories  that  were,  from 
every  scientific  point  of  view,  revolutionary  and  of 
marvellous  effects.  Before  closely  examining  these 
theories  it  will  be  desirable  to  review  briefly  certain 
earlier  expressions  of  English  political  thought  which 
have  been  passed  over  hitherto  as  without  great  im- 
portance and  without  influence  on  the  general  trend 
of  development. 

SELECT  REFERENCES 

BLUNTSCHLI,  Geschichte,  88-100.  CARMICHAEL,  "Grotius 
and  the  Literary  History  of  the  Law  of  Nations/'  in  Transac- 
tions of  the  Royal  Society  of  Literature,  1884.  FRANCK, 
Eeformateurs  et  Publicistes,  XVIIme  siede,  253-332.  GROTIUS, 
On  the  Law  of  War  and  Peace,  translated  and  abridged  by 
Whewell;  Prolegomena  to  the  Law  of  War  and  Peace,  Old 
South  Leaflets,  general  series,  No.  101.  HOLLAND,  Studies 
in  International  Law.  JANET,  Histoire,  II,  227-234.  KAL- 
TENBORN,  Die  Vorlaufer  des  Hugo  Grotius.  NYS,  Les  Origines 
du  droit  international.'  PRADIER-FODERE,  Essai  biographique 
et  historique  sur  Grotius  et  son  temps. 


CHAPTER  VI 

ENGLISH    POLITICAL   PHILOSOPHY    BEFORE    THE 
PURITAN    REVOLUTION 

1.    Development  of  the  Constitution 

IN  relation  to  the  history  of  political  theories,  the 
position  of  England  has  a  certain  analogy  with  that 
of  Rome.  In  the  one,  as  in  the  other,  an  advanced 
stage  of  development  in  both  public  and  private  law 
was  attained  before  the  abstract  principles  involved 
entered  to  any  important  extent  into  the  conscious- 
ness of  the  statesmen  and  lawyers.  The  English 
constitution,  like  the  Roman,  was  a  product  of  prac- 
tical political  sagacity,  administrative  ability  and  a 
spirit  of  legalism  in  the  dominant  classes ;  and  the 
later  system  owed  as  little  to  the  scholastic  political 
theories  that  prevailed  on  the  Continent,  as  the 
earlier  system  owed  to  the  refinements  of  Greek  spec- 
ulation. The  Plantagenet  monarchy  and  the  com- 
mon law  were  as  peculiarly  the  expression  of  English, 
as  the  Republican  constitution  and  the  ius  civile  were 
of  Roman,  conditions  and  character.  Nor  does  the 
analogy  stop  with  the  formative  period.  English  and 
Roman  institutions  both  came  ultimately  under  the 
analysis  of  speculative  politics,  and  each  system 
assumed,  first  to  foreign  and  then  to  native  philoso- 

192 


THE  ENGLISH  CONSTITUTION  193 

phy,  the  guise  of  abstract  perfection.  Montesquieu 
and  Burke  gave  to  the  English  constitution  a  position 
in  the  political  theory  of  the  eighteenth  and  nine- 
teenth centuries  quite  comparable  to  that  which  was 
occupied  throughout  the  Middle  Ages  by  the  Roman 
constitution  as  idealized  by  Polybius  and  Cicero. 

The  salient  features  in  the  growth  of  the  English 
constitution1  after  the  Norman  Conquest,  when  the 
process  becomes  fairly  clear,  are,  first,  the  establish-4 
ment  of  monarchic  power  sufficiently  strong  to  resist 
the  disintegrating  tendencies  of  feudalism;  second, 
the  development  of  a  council,  the  organ  of  the  great 
men  of  the  realm,  both  lay  and  ecclesiastical,  through 
whose  necessary  cooperation  in  the  government  the 
tendency  to  tyranny  was  checked ;  third,  the  union 
of  this  council  with  delegates  of  the  lesser  social 
classes,  in  a  Parliament  with  far-reaching  authority 
in  taxation  and  general  legislation ;  and  fourth,  the 
organization  of  the  fiscal  and  judicial  administration 
in -such  manner  as  to  insure  a  permanent  and  impor- 
tant part  to  the  popular  organs  of  local  government. 
The  strength  of  the  monarchic  element  was  due  to 
the  harsh  but  efficient  vigour  of  the  Conqueror  and 
his  successors.  For  the  restraints  upon  the  king, 
both  self-imposed  to  win  popular  support,  and 
imposed  by  the  barons  and  people  for  their  own 
protection,  we  must  recur  to  the  coronation  oaths, 
charters  and  pledges,  from  Henry  I  on,  but  especially 
of  course  to  Magna  Carta  and  the  confirmations 
extorted  in  the  wars  of  Henry  III  and  Edward  I. 

i  For  an  admirable  summary,  see  Stubbs,  Select  Charters,  pp.  1-51. 

VOL.  II. — O 


194  POLITICAL  THEORIES 

In  the  reign  of  the  latter,  at  the  close  of  the 
thirteenth  century,  Parliament  had  become  in  form 
and  function  substantially  what  it  remained  for 
centuries;  and  the  guarantee  which  it  embodied  of 
the  rights  of  the  subject  against  the  king  was  paral- 
leled and  supported  by  the  jury  system  and  a  fairly 
independent  administration  of  justice. 

The  course  of  very  strenuous  politics  through 
which  this  point  of  development  was  reached 
nowhere  exhibits  any  recourse  to  abstract  principles. 
Of  legalism  there  is  much ;  of  political  science,  none. 
The  appeal  of  kings  and  barons  alike,  when  the  con- 
flict is  hot,  is  always  to  the  ancient  laws  and  customs 
of  the  realm,  never  to  any  general  doctrine  of  mo- 
narchic or  aristocratic  excellence.  Henry  I,  in  his 
charter  of  liberties,1  formally  goes  back  to  the  law 
of  Edward  the  Confessor.  Henry  II,  in  the  Constitu- 
tions of  Clarendon,2  professes  merely  to  record  "  the 
customs  and  franchises  and  dignities  of  King  Henry 
[I]  ...  and  other  kings."  Finally,  Magna  Carta 
throughout  assumes  merely  to  declare  the  "law  of 
the  land,"  and  to  secure  that  law  against  invasion. 
The  enormously  important  rights  therein  guaranteed 
to  Englishmen  have  no  speculative  basis  whatever, 
but  merely  the  security  that  inheres  in  the  appeal  to 
recorded  grant,  to  custom  and  to  precedent. 

Very  much  the  same  lack  of  theoretical  interest 
appears  in  the  relations  of  the  English  kings  with 

1  Sec.  13.     See  Stubbs,  Select  Charters,  p.  101. 

2  Text  in  Stubbs,  op.  cit.,  p.  137.     Translation  in  Gee  and  Hardy, 
Documents  of  English  Church  History,  p.  68. 


THE  ENGLISH  CONSTITUTION  195 

the  church  and  the  Papacy.  England  experienced  as 
fully  as  any  other  land  the  effects  of  the  policy 
represented  by  Gregory  YII  and  Innocent  III ;  but 
the  settlement  of  the  various  issues  that  arose 
involved  no  contribution  of  philosophic  doctrine  as 
to  the  relative  merits  of  secular  and  ecclesiastical 
authority.  William  the  Conqueror  brusquely  refused 
Gregory's  demand  that  he  should  do  fealty,  on 
the  ground  that  such  act  had  not  been  an  incident 
of  the  relations  between  earlier  kings  and  popes.1 
Henry  I  adjusted  with  Anselm,  Archbishop  of  Can- 
terbury, the  problem  of  investitures  on  the  purely 
practical  lines  which  were  later  followed,  though 
after  a  vastly  more  violent  controversy,  on  the  Con- 
tinent. In  the  famous  conflict  between  Henry  II 
and  Thomas  a  Becket,  the  dramatic  features  were 
due  more  to  the  personality  of  the  chief  actors  than 
to  the  antithesis  of  principles,  and  the  outcome  had  a 
much  greater  importance  in  law  than  in  philosophy. 
John's  humble  submission  to  Innocent  III  might  well 
serve  as  a  most  impressive  realization  of  the  pontiff's 
extremest  theories  as  to  spiritual  and  papal  suprem- 
acy; but  in  England  the  affair  presented  itself  as 
merely  an  episode  in  the  vindication  of  the  liberties 
and  laws  of  the  land.2  So  again,  when  Boniface  VIII, 
at  the  end  of  the  thirteenth  century,  made  his  demand 
for  the  exemption  of  the  clergy  from  taxation, 

1  "  Fidelitatem  f  acere  nolui  nee  volo ;  quia  nee  ego  promisi  nee  an- 
tecessores  meos  antecessoribus  tuis  id  fecisse  comperio."     Cf.  Stubbs, 
Constitutional  History,  I,  285  and  note. 

2  Cf.  Green,  History  of  the  English  People,  I,  236. 


196  POLITICAL  THEORIES 

Edward  I  of  England  was  no  less  peremptory  than 
Philip  the  Fair  of  France  in  setting  the  Pope  at  defi-' 
ance ; l  yet  the  papal  position  had  an  influence  in 
securing  from  the  king  a  renewed  recognition  of  the 
rights  embodied  in  Magna  Carta?  Finally  the  extor- 
tions  and  corruption  of  the  papal  administration  at 
Avignon  in  the  fourteenth  century  contributed  to 
produce,  not  only  the  satires,  grim  and  gay,  of  Lang- 
land  and  Chaucer,  but  also  the  statutes  of  Provisors3 
and  Prgemunire,4  which  were  ultimately  to  furnish 
the  ground  for  the  severance  of  the  English  from  the 
Roman  church. 

During  the  three  centuries  following  the  Norman 
Conquest  only  three  Englishmen  made  noteworthy 
contributions  to  philosophic  politics  —  John  of  Salis- 
bury,5 William  of  Ockam  and  Wycliffe.  All  of 
these,  whether  considered  from  the  standpoint  of  the 
source  or  from  that  of  the  influence  of  their  work, 
belong  more  to  Europe  than  to  England  in  particu- 
lar,6 and  all  have  been  treated  in  our  earlier  volume. 
Besides  the  evidence  of  the  charters  and  statutes 
themselves  as  to  the  ideas  that  were  at  work  in 
purely  English  politics  during  the  formative  period  of 

1  Cf.  History  of  Political  Theories,  Ancient  and  Mediceval,  pp.  216 
et  seq. 

2  Stubbs,  Select  Charters,  pp.  488  et  seq. 
8  25  and  27  Edw.  Ill  (1351  and  1353). 
4  16  Rich.  II  (1393). 

6  He  was  for  years  secretary  to  the  Archbishop  of  Canterbury, 
including  the  incumbency  of  Thomas  a  Becket. 

6  As  to  Wycliffe,  I  refer  here  to  his  Latin  philosophic  works. 
His  translation  of  the  Bible  and  his  other  works  in  English  have,  of 
course,  quite  another  significance. 


ENGLISH  JURISPRUDENCE  197 

the  constitution,  we  have  a  considerable  body  of  semi- 
popular  songs  and  manifestoes ;  but  the  tale  that 
these  tell  is  no  other  than  that  embodied  in  the 
formal  documents  —  the  tale  of  rights  asserted  and 
maintained  on  the  basis  of  ancient  law  and  custom.1 
A  broader  basis  than  this  for  justice  and  government 
enters  into  the  consciousness  of  the  English  only  very 
gradually.  But  it  is  through  the  jurists  and  their 
devotion  to  law  that  this  progress  is  made,  and  the 
development  of  specifically  English  political  philoso- 
phy has  to  be  traced  next  through  the  history  of 
English  jurisprudence. 

2.    The  Common  Law 

While  in  the  twelfth  and  thirteenth  centuries  the 
constitutional  structure  of  the  English  monarchy  was 
taking  form,  the  beginnings  were  made  of  systematic 
English  jurisprudence.  The  policy  of  Henry  II  and 
Edward  I  created  and  made  permanent  the  judicial 
organization  through  which  the  law  of  the  land  was 
to  be  administered,  while  three  remarkably  well- 
equipped  members  of  the  royal  courts  wrote  treatises 
in  which  the  content  of  that  law  was  set  forth  with 
considerable  scientific  precision.  Glanvil,  Richard 

1  See  Wright,  The  Political  Songs  of  England.  The  notable  Latin 
poem  on  the  Battle  of  Lewes  (p.  72)  contains  some  striking  passages 
on  the  general  principles  which  characterize  absolute  and  limited 
monarchy  respectively,  and  on  the  relations  of  sovereignty  to  liberty 
and  law,  with  conclusions  adverse  to  royal  absolutism.  E.g.:  — 

"  Praemio  prseferimus  universitatem ; 
Legem  quoque  dicimus  regis  dignitatem 
Regere;  nam  credimus  esse  legem  lucem 
Sine  qua  concludimus  deviare  ducem." 


198  POLITICAL  THEORIES 

Nigel  and  Bracton l  were  the  first  to  describe  clearly 
many  features  of  English  legal  practice  and  proced- 
ure, and  thus  they  became  the  first  authorities  on  the 
common  law.  Their  work  was  contemporary  with 
the  great  revival  of  Roman  law  on  the  Continent, 
and  the  influence  of  the  Digest  is  discernible  in  the 
division  and  arrangement  of  their  subject ;  but  they 
seem  to  have  yielded  to  no  temptation  to  transfer  to 
England  the  actual  rules  of  the  Corpus  Juris.  The 
body  of  legal  principles  which  they  set  forth  is  purely 
English,  and  the  national  character  of  the  system 
was,  at  least  when  Bracton  wrote,  a  conscious  element 
of  national  strength.  At  Merton,  in  1236,  the  as- 
sembled magnates  of  the  realm  declared  "  Nolumus 
leges  Anglice  mutare  ;  "  and  with  this  famous  phrase 
declined  to  conform  to  the  Canon  law  where  it  con- 
flicted with  their  own.  From  the  inevitably  despotic 
tendencies  of  the  Roman  jurisprudence  the  law  of 
England  was  kept  free.  That  the  will  of  the  mon- 
arch should  have  the  force  of  law  was  wholly  in- 
consistent with  the  forms  and  theories  of  English 
legislation.  Glanvil  and  Bracton  lay  it  down  in  the 
strongest  terms  that  the  king,  while  subject  to  no 
man,  is  always  subject  to  law ;  and  the  doctrine  of 
the  Digest  as  to  the  will  of  the  prince  is  interpreted 
into  insignificance.2 

The  law  which  thus  early  was  recognized  as  the 

1  Their  works  were,  respectively :  Tractatus  de  Legibus  et  Consue- 
tudinibus  Anglice  (circ.  1190) ;  Dialogus  de  Scaccario  (circ.  1175)  ;  and 
De  Legibus  et  Consuetudinibus  Anglice,  (circ.  1250). 

2  Hallam,  Middle  Ages,  II,  334-335;  citing  Bracton,  I,  viii,  and  ix 
(cf.  II,  xvi). 


RISE  OF  THE  COMMON  LAW  199 

pride  of  Englishmen  was  not,  however,  a  well-defined 
body  of  rules  or  principles.  Except  as  far  as  it  wa,s\ 
to  be  found  in  Magna  Carta  and  a  few  other  formal  / 
documents,  it  lay  entirely  outside  of  any  statutory 
expression.  The  judgments  of  the  royal  courts,  in 
cases  brought  before  them  in  accordance  with  writs 
from  the  king's  chancery,  constituted  the  great  pro- 
portion of  this  potent  lex  terrce.  As  distinguished 
from  the  enactments  of  Parliament,  when  the  activity 
of  this  body  in  legislation  became  continuous,  from 
special  acts  of  the  royal  prerogative  and  from  local 
custom,  the  legal  rules  which  the  judges  of  the  king's 
courts  employed  came  gradually  to  be  known  as 
the  common  law.1  Being  unwritten  and,  from  the 
very  nature  of  the  case,  inaccessible  to  those  who 
were  not  familiar  with  the  working  of  the  courts,  it 
gradually  took  on  a  character  of  mystery  and  hence 
magnificence,  while  the  special  class  of  lawyers  who 
devoted  themselves  to  its  practice  naturally  contrib- 
uted to  the  exaltation  of  their  function  into  a  cult. 
Precedent  and  the  custom  of  the  courts  constituted 
the  sole  guide  to  the  application  of  the  law,  which 
necessarily  was  extremely  conservative.  Refined 
distinctions  and  ingenious  interpretation  were  the 
only  recognized  method  of  amendment,  and  this 
method  produced  an  ever  increasing  complexity  in 
the  system.  The  royal  chancellor  had  to  develop  an 
equity  jurisdiction  in  order  to  afford  some  relief  from 

1  Bracton  uses  ius  commune  and  lex  communis  in  a  different  sense. 
The  sense  defined  in  the  text  became  established  only  in  the  four- 
teenth century.  Cf.  Pollock  and  Maitland,  History  of  English  Law, 
I,  156-157. 


200  POLITICAL  THEORIES 

the  more  intolerable  evils  of  the  Common  law,  but 
the  chancellor's  equity  proved  only  less  narrow  and 
insular  than  the  strict  law.  Yet  with  all  its  tech- 
nical imperfections,  English  law  as  a  whole  served  ad- 
mirably to  exemplify  and  confirm  the  national  type, 
and  the  Englishman's  pride  in  his  system  was  as  sin- 
cere and  at  least  as  well  justified  as  that  of  the  Roman 
in  his  ius  civile. 

For  nearly  two  centuries  after  Bracton  wrote,  no 
juristic  exposition  and  commentary  on  English  law 
appeared.  The  system  moved  on  "  from  precedent  to 
precedent,"  and  all  the  novel  and  varying  conditions 
that  arose  were  met  by  the  genius  of  the  lawyers  and 
the  judges  in  stretching  and  twisting  the  old  fabric 
to  cover  the  new  circumstances,  or,  as  is  the  way  of 
the  law,  in  devising  wholly  new  expedients  and  call- 
ing them  by  old  names.  In  the  fifteenth  century, 
however,  when  the  Wars  of  the  Hoses  were  desolat- 
ing England,  Sir  John  Fortescue,  titular  chancellor 
of  Henry  VI,  but  actually  an  attainted  exile  with  his 
king,  consoled  himself  in  his  banishment  from  Eng- 
land by  various  treatises  on  the  law  that  he  could 
not  officially  administer.  In  these  are  to  be  found 
some  indications  of  a  philosophic  spirit  and  some 
effort  to  explain  the  legal  and  political  institutions  of 
England  in  terms  of  the  systems  that  had  long  fixed 
the  lines  of  Continental  thought.  Fortescue  repre- 
sents, however,  the  traditional  as  well  as  a  newer 
tendency ;  for  the  very  name  of  his  best-known  work 
embodies  a  strain  of  the  English  lawyer's  compla- 
cency —  On  the  Excellence  of  the  Laws  of  England.1 

1  De  Laudibus  Legum  A  nglice. 


THE  LAW  OF  NATURE  201 


3.  Sir  John  Fortescue 


Besides  the  work  just  referred  to,  which  was  writ- 
ten about  the  year  1470,  an  earlier  treatise,  On 
the  Nature  of  the  Law  of  Nature,  and  a  later,  On 
the  Governance  of  England,  contain  respectively  the 
philosophic  basis  of  his  politics  and  his  views  as  to 
certain  practical  questions  of  the  royal  administra- 
tion.1 His  philosophy  proper  does  not  get  beyond 
the  commonplaces  of  scholasticism,  drawn  largely 
from  Thomas  Aquinas.  The  definition  and  classifica- 
tion of  law  is  that  of  the  Summa  Theologica,  and  Sir 
John  contributes  obscurity  rather  than  light  when  he 
undertakes  to  elucidate  the  thought  of  the  master. 
Only  where  the  legal  rather  than  the  broader  philo- 
sophic aspect  of  the  discussion  comes  to  the  front 
does  his  grasp  of  the  subject  appear  certain  and  assur- 
ing. The  law  of  nature  he  conceives  as  the  universal 
code  of  all  created  things,  dictated  by  God  and  embody- 
ing perfect  justice.  Under  this  law  all  secular  affairs 
were  directed  prior  to  the  establishment  of  customary 
law  and  of  codes  like  that  of  Moses.  Sir  John,  in 
other  words,  conceives  of  a  state  of  nature  antedating 
the  establishment  of  government;  and  he  very  dis- 
tinctly recognizes  that  ultimate  power  in  government 
is  explainable  only  through  the  natural  law  that  pre- 
vailed in  this  first  condition  of  things.  "Koyal 

1  The  complete  works,  with  translations  of  such  as  are  in  Latin 
and  French,  have  been  collected  in  a  sumptuous  volume  by  Lord 
Clermont,  1869.  For  separate  editions  of  the  De  Laudibus  and  the 
Governance,  see  bibliography,  infra. 


202  POLITICAL  THEORIES 

power,"  by  which  he  means  sovereignty,  "  had  its 
origin  under  the  law  of  nature."1  This  supreme 
authority  is  not  to  be  discussed,  therefore,  under  the 
terms  of  human  enactments,  but  as  the  source  of 
those  enactments.2  And  this  view,  logically  sufficient 
and  admirable,  is  fortified,  as  Sir  John  imagines,  by 
an  extensive  appeal  to  what  passed  for  history  —  the 
tales  of  Nimrod  and  Ninus  and  Belus,  in  the  times 
anterior  to  Moses. 

The  most  definite  purpose  of  his  thought  comes 
clearly  into  view  in  his  classification  of  the  kinds  of 
government.  Assuming  St.  Thomas's  distinction 
between  royal  and  political  rule  (dominium)?  Fortes- 
cue  declares  that  a  third  form,  combining  these  two, 
is  shown  by  experience  to  be  worthy  of  especial  praise. 
This  species,  which  he  calls  political  and  royal 
(domimum  politicum  et  regale),  characterized  the 
Hebrew  and  the  early  Roman  states,  and  it  is 
especially  illustrated  in  the  government  of  England, 
where  the  king  can  make  law  and  lay  taxes  only 
with  the  consent  of  the  three  estates  of  the  realm, 
and  where  the  judges  are  sworn  to  judge  according 
to  the  law  of  the  land  even  though  the  king  com- 
mand to  the  contrary.4  The  excellence  of  this  form 
of  government  is  a  chief  theme  of  all  his  works,  and 


1  Potestas  regia  .  .  .  sub  sola  .  .  .  lege  nature  sumpsit  exordium. 
—  De  Natura  Legis  Natures,  I,  v. 

2  Ibid.,  cap.  x. 

8  Cf.  Political  Theories,  Ancient  and  Mediaeval,  p.  201. 

4  De  Natura  Legis  NaturoR,  I,  xvi.  Cf.  De  Laudibus,  cap.  ix ;  Gov- 
ernance of  England,  cap.  i  and  ii.  In  the  Governance  he  speaks  of 
only  two  forms,  the  regal  and  the  political  and  regal. 


FORMS   OF   GOVERNMENT  203 


is  proved  and  illustrated  from  every  point  of  view. 
Absolute  or  regal  monarchy,  he  explains,  originated 
in  the  mere  force  and  violence  of  the  strong  man, 
whose  commands  became  in  time  the  customary  law 
of  his  subjects ;  political  monarchy  originated  in  the 
consent  of  the  people,  who,  desiring  social  unity, 
achieved  it  by  deliberately  establishing  the  kingship, 
to  the  end  that  a  royal  head  should  harmonize  all  the 
vital  functions  of  the  body  politic  through  the  nerves 
or  sinews  of  the  law.1  The  form  at  once  royal  and 
political  combines  an  absolute  and  untrammelled  au- 
thority of  the  king  in  times  of  crisis  with  the  rule  of 
law  in  the  normal  condition  of  the  people. 

To  this  analysis  of  governmental  organization  and 
function  in  which  Fortescue  seeks  to  glorify  England 
he  adds  a  more  lengthy  and  more  clear  and  consistent 
comparison  of  the  English  with  the  Roman  or  Conti- 
nental private  law.  At  the  very  source  he  finds  the 
advantage  to  be  with  the  English  ;  for  in  the  Roman 
system  it  is  the  will  of  the  prince  that  makes  law,  while 
in  the  English  the  will  of  the  prince  is  but  a  single 
and  subordinate  element,  the  Common  law  consisting 
in  customs  that  have  come  down  from  immemorial 
antiquity,2  while  the  statutes  are  enacted  by  the 
consent  of  the  whole  realm  in  Parliament.3  Superior 
at  its  source,  the  law  of  England  is  found  by  Fortes- 
cue  to  be  not  less  praiseworthy  in  its  content :  trial 

1  For  an  extensive  anatomical  analogy  between  state  and  indi- 
vidual, see  De  Laudibus,  cap.  xiii. 

2  Sir  John  traces  them  back  to  Brutus  and  his  Trojans.     De 
Laudibus,  cap.  xiii. 

8  Ibid.,  cap.  xvii  and  xviii. 


204  POLITICAL  THEORIES 

by  jury,  the  absence  of  torture,  and  a  variety  of  other 
features  of  substance  and  procedure  are  proved  more 
rational  and  just  than  the  corresponding  features  of 
the  Roman  law.  For  the  concrete  illustration  of  his 
comparison  he  presents  a  striking  picture  of  the  con- 
ditions among  the  peasantry  in  France  and  in  Eng- 
land respectively,1  based  on  his  personal  observation. 
Though  the  poverty  and  wretchedness  of  the  French 
and  the  wealth  and  happiness  of  the  English  are  each 
somewhat  exaggerated,  the  method,  nevertheless,  of 
basing  a  philosophy  of  politics  on  actual  observations 
rather  than  on  mere  juggling  with  the  dicta  of  former 
writers  entitles  Sir  John  Fortescue  to  credit  for  some- 
thing of  the  spirit  which  was  soon  afterward  to  shine 
resplendently  in  Machiavelli.  For  Sir  John,  taking 
France  as  an  example  of  a  kingdom  under  purely 
"  regal "  government  and  under  the  Roman  law,  at- 
tributes the  misery  of  its  people  directly  to  these 
political  and  legal  institutions. 

In  England,  on  the  other  hand,  prosperity  and 
contentment  among  the  people  are  immediately  due 
to  the  combination  of  "regal"  with  " political "  gov- 
ernment and  to  the  beneficent  workings  of  English 
law.  The  list  of  advantages  which  Fortescue  gives 
as  secured  to  Englishmen  by  the  political  system  of 
the  realm  runs  pretty  close  to  the  list  of  rights  that 
were  formally  enacted  into  law  after  the  Revolution. 
There  is  no  intrusion  by  any  one  within  the  house  of 
a  citizen  save  with  the  master's  will  (i.e.  no  quarter- 
ing of  troops) ;  no  one  takes  another's  property  with- 

1  De  Laudibus,  cap.  xxxv  and  xxxvi. 


FORTESCUE  AND  COKE  205 

out  the  consent  of  the  owner ;  no  taxes,  subsidies  or 
other  burdens  are  imposed  and  no  legislation  enacted 
save  by  the  assent  of  the  whole  realm  in  Parliament ; 
no  one  is  brought  to  trial  save  before  the  regular 
courts  or  tried  save  by  the  law  of  the  land  ;  and 
no  one  is  put  in  peril  of  losing  his  life  or  liberty 
or  property  except  in  accordance  with  that  same 
law. 

Fortescue's  theory  as  to  the  reign  of  law  in  Eng- 
land was,  like  so  many  similar  theories,  something  of 
an  anachronism.  It  was  enunciated  just  when  the 
reign  of  the  Yorkist  line  was  preparing  the  way  for 
the  Tudor  despotism.  Though  it  is  hard  to  see  in  the 
time  of  Henry  VIII  and  his  children  much  relation 
between  Fortescue's  theory  and  the  actual  system, 
the  Lancastrian  chancellor's  doctrine  became  under 
James  I  a  strong  and  oft-cited  authority  for  the  Par- 
liamentary opposition.  Sir  Edward  Coke,  in  particu- 
lar, found  much  edification  in  the  theory  of  one  who 
was,  like  himself,  an  incarnation  of  the  Common 
law,  and  through  Coke  the  spirit  of  Fortescue  was 
transmitted  to  all  the  adversaries  of  the  crown  in 
the  Puritan  Revolution. 

4.    The  Tudor  Century:  More;  Hooker 

The  Tudor  regime  in  England,  filling  the  sixteenth 
century,  was  as  little  favourable  to  political  specula- 
tion as  the  age  of  Augustus  at  Home.  A  single  idea 
summed  up  the  conscious  creed  of  Englishmen, 
namely,  that  the  interest  and  indeed  the  safety  of  the 
nation  depended  upon  an  unhampered  and  efficient 


206  POLITICAL   THEORIES 

monarch.  As  against  the  material  prosperity  which 
flowed  from  this  source,  spiritual,  legal  and  political 
beliefs  and  traditions  were  counted  for  nothing  and 
were  ruthlessly  crowded  aside.  The  lecherous  whim 
of  a  brutal  king  and  the  filial  fanaticism  of  a  pious 
queen  were  of  equal  influence  in  transforming  the 
whole  ecclesiastical  system  of  the  realm.  Not  only 
the  dignitaries  of  the  Anglican  church,  but  also  the 
Lords  and  Commons  in  Parliament  and  the  judges 
in  the  courts  displayed  a  grotesque  agility  in  juggling 
the  constitution  and  the  vaunted  law  of  the  land 
into  conformity  with  the  monarch's  ever-shifting  will. 
Nor  did  the  dominion  of  the  despot  end  with  death ; 
for  the  whole  scheme  of  the  succession  to  the  throne 
was  dictated  by  Henry  VIII  at  the  behest  of  his 
obsequious  Parliament.1  Thus  not  even  that  small 
shadow  of  restriction  which  is  incident  to  a  fixed 
principle  of  succession  qualified  the  absolutism  of 
the  sovereign  monarch.  The  security  of  life,  lib- 
erty and  property  which  Fortescue  had  so  proudly 
proclaimed  as  the  glory  of  Englishmen  became  grim 
irony,  in  presence  of  the  attainders,  imprisonments 
and  confiscations  through  which  Parliament,  Star 
Chamber  and  High  Commission  carried  out  the  royal 
will. 

In  the  welter  of  Tudor  absolutism  there  was  room 
for  no  more  than  a  single  doctrine  of  political  theory,  : 
and    that   was   the   doctrine   of   passive    obedience. 
Some  rather  trivial  expositions  of  this  principle  con- 
stitute the  chief  output  of  English  speculation  until 

1  28  Henry  VIII,  c.  7 ;  35  Henry  VIII,  c.  1. 


THE  TUDOR   CENTURY  207 


the  latter  part  of  Elizabeth's  reign.1  The  only  im- 
portant exception  was  the  famous  Utopia  of  Sir 
Thomas  More,  which  was  published,  though  not  in 
England,  early  in  the  reign  of  Henry  VIII.  That 
this  work  could  not  appear  in  England  is  significant 
of  its  relation  to  English  thought.  Both  in  substance 
and  in  method  the  Utopia  lies  wholly  outside  the 
range  of  contemporary  sentiment  and  ideals.  Its 
author  was  of  that  refined  intellectual  type  which  bore 
the  influence  of  the  humanistic  movement  through- 
out northern  Europe.  His  character  and  spirit  were 
totally  out  of  sympathy  with  the  influences  which 
were  dominant  in  the  time  of  Henry  VIII.  The 
king's  own  personality,  with  its  thin  veneer  of  cul- 
ture over  an  ever  protruding  beastliness,  no  less  than 
the  general  materialism  which  led  Englishmen  to 
clothe  such  a  monarch  with  despotic  power,  was  a 
fair  mark  for  More's  gentle  cynicism.  The  Utopia 
was  the  satire  of  a  cultivated  mind  and  refined  spirit 
upon  the  society  of  which  he  was  a  part,  but  from 
which  he  was  at  the  same  time  an  alien. 

More  clearly  discerned,  and,  in  the  Introduction  to 
the  Utopia^  set  forth  with  something  of  Machiavelli's 
explicitness,  the  devices  by  which  despots  gain  their 
ends ;  but  he  manifested  no  slightest  share  in  his  Ital- 
ian contemporary's  complacency  toward  these  devices, 
and  indeed  rejected  with  emphasis  the  suggestion  of  an 
opportunism  which  should  tolerate,  while  striving  to 
reform,  the  system  which  they  produced.  The  root  of 

1  For  mention  of  some  of  these  works,  see  Figgis,  The  Divine  Right 
of  Kings,  pp.  93  et  seq. 


208  POLITICAL  THEORIES 

all  the  evils  of  society  he  finds  to  be  the  institution  of 
private  property,  and  the  lesson  of  his  satire  is  com- 
munism.1 What  Plato  develops  as  an  incident  of  his 
dialectic,  but  drops  as  a  practical  expedient,  More 
makes,  with  apparently  serious  intent,  the  central  doc- 
trine of  his  work,  and  thus  becomes  the  herald  of  the 
great  modern  socialistic  propaganda.  Other  features 
of  the  Utopia  which  emphasize  the  aloofness  of  the 
author  from  his  environment  are  the  disparagement 
of  war  and  military  glory  and  a  very  remarkable 
theory  of  religious  toleration.  Of  the  topics  peculiar 
to  political  as  distinguished  from  social  philosophy, 
More's  treatment  is  of  the  slightest,  and  it  is  chiefly 
through  the  renewed  impulse  which  the  Utopia  gave 
to  the  Platonic  idealizing  method  in  philosophic  spec- 
ulation that  his  work  is  of  significance  in  the  general 
current  of  political  theory. 

The  influence  of  the  Renaissance  on  the  philosophy 
of  politics  in  England  is  practically  limited  to  the 
Utopia,  at  the  beginning  of  the  sixteenth  century. 
Not  till  the  end  of  that  century  did  the  influence  of 
the  Reformation  make  itself  manifest.  Under  Eliz- 
abeth the  English  people,  with  obvious  reluctance, 
abandoned  the  equivocal  but  characteristic  position  it 
had  taken  in  the  great  conflict  of  the  creeds  and  com- 
mitted itself  definitively  to  Protestantism.  Promptly 
appeared  the  inevitable  debate  as  to  the  true  standard 

1  In  the  Introduction,  which  was  really  a  postscript  to  the  Utopia, 
he  says :  "  I  am  persuaded  that  till  property  is  taken  away  there  can 
be  no  equitable  or  just  distribution  of,  things,  nor  can  the  world  be 
happily  governed."  Translation  in  Ideal  Commonwealths,  edited  by 
Henry  Morley. 


THE  TUDOR  CENTURY  209 

of  faith  and  discipline  that  should  replace  the  rejected 
authority  of  Rome.  Puritanism,  with  an  unmistak- 
able Calvinistic  leaven,  began  to  assail  the  at  least 
not  invulnerable  logical  supports  of  the  Anglican 
ecclesiastical  order,  and  with  the  development  of  this 
assault  the  current  of  incidental  political  philosophy 
began  to  flow  in  the  same  channels  as  on  the  Conti- 
nent. The  heroes  of  French  and  Scottish  and  Dutch 
Calvinism  could  not  receive  their  due  meed  of  venera- 
tion from  their  English  admirers  without  communi- 
cating in  turn  to  the  Englishmen  that  anti-monarchic 
doctrine  which  glowed  on  every  page  of  Buchanan, 
Althusius  and  the  Vindicice  contra  Tyrannos.  And 
on  the  other  hand,  defenders  of  the  established  order 
and  its  authority  had  necessarily  to  accept  that  very 
far-reaching  conception  of  sacrosanct  royal  power  that 
was  involved  in  the  legal  status  of  the  monarch  as 
"the  only  supreme. head  in  earth  of  the  church  of 
England."  But  neither  popular  sovereignty  nor 
divine  right  of  kings  received  thoroughgoing  exposi-  / 
tion  by  Englishmen  till  the  Stuarts  were  on  the  / 
throne.1  In  the  reign  of  Mary,  Poynet,  the  exileti 
Bishop  of  Winchester,  and  Goodman,  a  companion  of 
John  Knox,  embodied  their  grievances  in  monographs 
proclaiming  the  right  of  resistance  to  tyranny ;  and 
absolutism,  on  the  other  hand,  was  preached  by  some 
of  the  holders  of  ecclesiastical  preferment.  The  most 
characteristic  philosophy  of  Elizabeth's  reign,  how- 

1  For  the  course  of  English  thought  in  the  Tudor  century  see  the 
sketch  in  Gooch,  English  Democratic  Ideas  in  the  Seventeenth  Century, 
pp.  34  et  seq.  Cf.  also  Hallam,  Literature  of  Europe. 

VOL.  II. P 


210  POLITICAL  THEORIES 

ever,  was  that  which  found  powerful,  though  emi- 
nently dignified  and  temperate,  expression  in  Richard 
Hooker's  classic  work,  The  Laws  of  Ecclesiastical 
Polity.1 

Hooker  wrote  in  defence  of  the  Anglican  church 
against  the  Puritans.2  His  theme,  therefore,  was 
church  government ;  but  his  philosophy  frankly  rec- 
ognized the  identity  of  all  governments,  whether 
ecclesiastical  or  secular,  in  their  fundamental  prin- 
ciples ;  and  hence  the  first  book  of  his  treatise,  dealing 
with  the  nature  and  classes  of  law  in  general,  em- 
bodied a  considerable  contribution  to  political  theory. 
Churchman  and  conservative  though  he  was,  Hooker 
was  brought  by  his  philosophic  temperament  to  set  in 
conspicuous  light  certain  rationalistic  doctrines  ;  and, 
as  it  happened,  these  were  to  become  soon  the  most 
effective  weapons  in  the  arsenal  of  those  who  were 
assailing  the  church  and  the  throne.  His  conception 
and  exposition  of  natural  law  place  him  in  the  group 
of  Protestant  thinkers  who  opened  the  way  for 
Grotius.3  The  basis  and  the  origin  of  society  and 
government  Hooker  explained  by  those  dogmas  that 
in  one  form  or  another  characterized  every  conspicu- 
ous demonstration  of  anti-monarchic  principles  —  the 
presocial  state  of  nature,  the  formal  consent  and  / 

1 1  have  used  Hooker's  Works,  arranged  by  Keble,  3d  American, 
from  the  last  Oxford  edition,  New  York,  1851. 

2  The  Preface,  addressed  to  the  Puritans,  is  a  model  of  both 
historical  and  argumentative  discourse,  and  in  itself  abundantly 
justifies  the  designation  of  "  judicious,"  or  judicial,  which  was  early 
associated  with  the  writer's  name. 

8  Supra,  p.  154. 


RICHARD   HOOKER  211 


contract  for  the  institution  of  political  life,  and  the 
subjection  of  rulers  to  a  law  which  embodied  the 
terms  of  the  contract.  The  early  state  of  men,  he 
conceived,  was  full  of  envy,  strife,  contention  and 
violence, 

which  would  be  endless,  except  they  gave  their  common  con- 
sent all  to  be  ordered  by  some  whom  they  should  agree  upon, 
without  which  consent  there  were  no  reason  that  one  man 
should  take  upon  him  to  be  lord  or  judge  over  another.1 

The  terms,  express  or  tacit,  of  the  agreement  in\ 
which  government  is  constituted,  form,  Hooker  said,  \ 
"  that  which  we  call  the  Law  of  a  Commonwealth,"  / 
and  are  the  conditions  upon  which  the  power  of  the 
state  is  exercised.      Yet  he    cautiously  evaded    the 
anarchist's  conclusion  by  declaring  the  original  con-/ 
tract  to  be  binding  in  perpetuity. 

The  act  of  a  public  society  of  men  done  five  hundred  years 
sithence  standeth  as  theirs  who  presently  are  of  the  same 
societies,  because  corporations  are  immortal ;  we  were  then  alive 
in  our  predecessors  and  they  in  their  successors  do  live  still.2 

That  the  most  useful  doctrines  of  the  revolutionists 
of  his  day  should  have  been  assumed  by  Hooker  as 
the  basis  for  a  defence  of  established  authority,  shows 
him  to  have  been  more  sensitive  to  the  rationalistic 
currents  of  contemporary  philosophy  than  clever  as  a 
controversialist.  The  theory  of  government  based  on 
consent  could  not  sustain  the  cause  of  either  mon- 
archy or  episcopacy  in  England,  and  the  instinctive 
consciousness  of  this  fact  is  what  led  James  I  to  set 

1  Ecclesiastical  Polity,  I,  x,  (4). 

2  Ibid.,  I,  x,  (8). 


212  POLITICAL   THEORIES 

up  and  maintain  with  all  his  ponderous  pedantry  the 
doctrine  that  the  king  and  the  bishops  alike  had 
their  authority,  not  in  any  sense  from  their  subjects, 
but  from  God. 

5.   James  I  and  his  Contemporaries 

The  reign  of  the  first  Stuart  in  England  was  a 
period  in  which  the  various  conflicting  currents  of 
political  thought  that  had  been  running  strong  in 
neighbouring  lands  for  fifty  years  gave  first  indi- 
cation of  a  boisterous  meeting  where  the  calm  of 
the  Tudor  absolutism  had  hitherto  been  almost 
unbroken.  James  was  unable  to  maintain  for  the 
middle  class  of  Englishmen  that  material  prosperity 
through  which  the  Tudors  had  won  its  support,  and 
the  discontent  manifested  itself  in  a  marked  increase 
of  that  ecclesiastical  and  constitutional  opposition  to 
the  crown  which  had  been  noticeable,  though  insig- 
nificant, under  Elizabeth. 

On  the  ecclesiastical  side  the  Puritans,  met  at 
every  step  by  the  requirement  of  conformity  to  a 
ritual  that  they  regarded  as  tainted  with  papistry, 
tended  steadily  toward  doctrines  of  church  govern- 
ment that  were  wholly  subversive  of  the  existing 
order.  Less  violently  than  had  been  the  case  on  the 
Continent  during  Luther's  lifetime,  but  none  the  less 
certainly,  the  inevitably  atomizing  influence  of  the 
revolt  from  Rome  became  manifest  in  England. 
Presbyterianism,  hot  from  Geneva  and  Scotland,  was 
a  satisfactory  resort  for  many  in  the  attempt  to 
escape  the  rule  of  the  bishops ;  but  more  disquieting 


THE   PURITAN   MOVEMENT  213 

was  the  growth  of  the  Separatists,  or  Independents, 
whose  theory  that  any  group  of  Christians,  self- 
organized  and  self-supporting,  could  constitute  them- 
selves a  church  and  worship  in  their  own  chosen  way, 
was  utterly  incompatible  with  any  conception  of 
social  order  that  respectable  philosophy  had  yet 
evolved.  The  Presbyterian  wing  of  the  Puritans, 
in  sustaining  their  views,  needed  to  add  nothing  to 
the  complete  theories  of  Calvin  and  Knox,  except  a 
menacing  recurrence  now  and  then  to  the  political 
teachings  of  the  monarchomachs.  From  the  Separa- 
tists, on  the  contrary,  new  and  far-reaching  doctrines 
were  heard.  Ecclesiastical  authority  lay,  in  their 
opinion,  in  the  congregation  that  constituted  the 
church.  No  power  from  without  had  authority  to 
regulate  the  affairs  of  an  association  of  Christian 
worshippers.  As  a  voluntary  union  of  individuals 
into  a  congregation  for  common  worship  was  the 
essence  of  a  church,  so  a  voluntary  union  of  such 
churches  was  the  utmost  that  could  be  thought  of  as 
involved  in  the  idea  of  a  national  church.  Neither 
the  bishops  of  the  historical  establishment  nor  even 
the  synods  and  general  assemblies  through  which  the 
Presbyterians  sought  to  preserve  ecclesiastical  unity, 
were  regarded  by  the  Independents  as  Christian 
institutions.  So  far  as  the  secular  authorities  sought 
to  sustain  such  ecclesiastical  organs  and  compel  their 
recognition  by  Christian  subjects,  the  secular  author- 
ities were  wrong  and  must  not  be  obeyed.  But  pas- 
sive, not  active,  resistance  was  all  that  the  early 
Independents  had  in  mind;  and  the  migration  to 


214  POLITICAL  THEORIES 

Holland  and  to  America  to  escape  persecution  by 
the  episcopal  authority  is  as  significant  of  their  feel- 
ing on  the  one  side,  as  their  unswerving  fidelity  to 
the  royal  allegiance  is  of  their  feeling  on  the  other. 
Toleration  by  the  government  of  their  religious  belief 
was  the  only  qualification  which  they  asked  of  the 
principle  of  absolute  monarchy.1 

On  the  side  of  purely  secular  affairs  James  I  found 
himself  confronted  throughout  his  reign  by  annoying 
manifestations  of  self-consciousness  in  both  Parliament 
and  the  judiciary.  Each  of  these  sought  to  assert 
for  itself  the  position  of  an  independent  rather  than 
merely  an  auxiliary  organ  of  the  state.  On  behalf  of 
Parliament  there  was  pressed  forward  the  claim  to 
participation  in  the  laying  of  all  kinds  of  taxes  and 
in  the  determination  of  the  general  policy  of  the 
government.  On  behalf  of  the  judiciary  Sir  Edward 
Coke  set  up  the  doctrine  that  the  Common  law,  as 
law  par  excellence,  was  above  the  king,  and  that  there- 
fore the  Common-law  courts  were  superior  in  authority 
to  such  tribunals  as  depended  only  on  the  royal  pre- 
rogative.2 Against  both  these  pretensions,  that  tended 
to  trench  deeply  upon  his  absolute  power,  King  James 
was  able  to  oppose  a  vigorous  and  effective  resistance. 
He  lectured  Parliament  roundly  for  the  impudence  of 
its  claims ;  he  seized  and  imprisoned  the  members  of 

1  For  an  admirable  summary  of  the  views  of  the  early  Indepen- 
dents, see  Osgood,  "  The  Political  Ideas  of  the  Puritans,"  in  Political 
Science  Quarterly,  VI,  1  and  201 ;  esp.  pp.  13  et  seq.     Excellent  also  is 
Gooch,  English  Democratic  Ideas  in  the  Seventeenth  Century,  chaps,  i 
and  ii. 

2  Such  as  the  Star  Chamber  and  the  High  Commission. 


JAMES  I  AND  DIVINE  RIGHT  215 

the  House  of  Commons  who  were  most  active  in  urg- 
ing them;  and  he  tore  out  of  the  records  with  his  own 
hands  the  protest  in  which  the  House  asserted  its 
privileges.  Coke  also  was  brought  to  his  knees  and 
was  made  to  feel  the  full  force  of  the  king's  dis- 
pleasure. Throughout  the  whole  of  these  con- 
troversies, however,  the  opposition  to  the  monarch 
based  itself  not  on  any  abstract  theory,  but,  with  the 
traditional  habit  of  English  legalism,  on  the  institu- 
tions and  precedents  of  the  law.  Magna  Carta,  the 
supposed  statute  De  Tallagio  non  concedendo,  and  the 
other  famous  documents  of  the  early  constitutional  de- 
velopment — in  short,  the  rights  of  Englishmen  and 
not  the  rights  of  man  —  were  almost  the  sole  depend- 
ence of  the  Parliamentary  opposition  in  the  conflict  on 
its  secular  side. 

But  while  the  opposition  thus  worked  almost  ex- 
clusively in  the  field  of  legalism,  the  king  himself 
stood  throughout  on  a  well-developed  philosophical 
theory.  Before  his  succession  to  the  English  throne 
James  had  formulated  a  systematic  statement  of  the 
divine  right  of  kings  in  his  short  treatise  entitled, 
The  True  Law  of  Free  Monarchy.*  This  was  the 
formal  repudiation  of  the  teachings  which  Buchanan, 
as  the  tutor  of  James,  had  embodied  in  the  De  lure 
Regni  apud  Scotos?  The  True  Law  had  for  its  thesis 
the  dogma  that  kings  rule  by  divine  right  and  that 
subjects  have  no  recourse  against  them,  and  under- 
took to  sustain  this  by  arguments  from  Scripture, 

1  Published  in  1598.     An  earlier  work,  BasiliTcon  Doron,  is  a  less 
complete  expression  of  the  same  views. 
*  Ante,  p.  5e. 


216  /         POLITICAL  THEORIES 


from  Vfch^laws  of  Scotland  and  from  the  law  of 
nature.  "'The  Scriptural  argument  traversed  familiar 
ground.  Saul's  coronation,  with  Samuel's  description 
of  the  character  of  kingly  rule  interpreted  as  a  divine 
injunction  to  passive  obedience,  and  the  explicit 
commands  of  St.  Paul  and  St.  Peter  were  set  forth  in 
the  mediaeval  spirit.  From  the  history  of  Scotland 
was  derived  the  conclusion  that  the  king  in  that  coun- 
try was  the  supreme  legislator  and  administrator  and 
had  power  of  life  and  death  over  every  subject.  The 
"  law  of  nature  "  furnished  merely  some  trite  and  dull 
analogies  with  the  head  and  members  of  the  physical  1 
body  and  with  the  relation  of  parent  and  child.  In 
refuting,  on  the  other  hand,  the  theory  that  there 
must  be  some  recourse  against  tyranny,  the  royal 
philosopher  made  a  good  case.  He  insisted  that  the 
dangers  of  anarchy  were  greater  than  those  of  tyranny: 
"  Better  is  it  to  live  in  a  commonwealth  where  nothing 
is  lawful  than  where  all  things  are  lawful  to  all  men." 
Further,  while  denying  that  there  is  implied  in  the 
coronation  oath  any  contract  between  king  and  people, 
as  the  monarchomachs  held,  James  argued  that  if 
there  were  such  contract,  it  would  be  the  height  of 
injustice  to  ascribe  to  one  party  the  right  to  say  when 
the  agreement  had  been  violated;  the  only  umpire 
would  be  God,  and  to  Him,  therefore,  all  appeals 
against  tyranny  must  be  made. 

On  this  platform  of  a  divine  commission  to  rule 
James  consistently  maintained  his  stand  against  all 
pretensions  to  power  by  his  subjects.  His  philosophi- 
cal argument  for  absolute  power  was  supplemented  by 


JAMES  I  AND  DIVINE  RIGHT  217 


an  habitual  assumption  in  speech  of  the  sacrosanctness  \ 
and  mystery  of  the  royal  function.     Thus  the  judges   ) 
who  sought  to  restrain  the  proceedings  of  the  preroga- 
tive courts  were  informed  :  "  It  is  atheism  and  blas- 
phemy to  dispute  what  God  can  do.    ...  so  it  is 
presumption  and  high  contempt  in  a  subject  to  dispute 
what  a  king  can  do,  or  say  that  a  king  cannot  do  this  or 
that."  l     This  extreme  assertion  of  divine  right  was  V 
unquestionably  determined  in  some  measure  by  the 
king's  perception  of  the  close  relation  between  the 
civil  and  the  ecclesiastical  agitators  of  his  time.     The 
revolutionary   tendencies    involved    in    the   Puritan 
movement  were   neatly  appreciated   in   his  famous 
dictum  at  the  Hampton  Conference  in  1604  :  "  No 
bishop,  no  king."     Authority  from   above  and  not 
from  below  was  the  principle,  in  his  mind,  of  both 
ecclesiastical   and   secular    order;    and   if  episcopal 
authority  should  give  way  to  that  of  chosen  represent- 
atives of  the  congregations,  the  royal  authority  was 
likely    to    experience    a    like    fate.     The    tendency 
toward  open  identification  with  each  other  of  the  sub-    / 
versive  tendencies  in  both  church  and  state  achieved/ 
its  perfect   work   in   the   reign   of   Charles   I,   who 
ascended  the  throne  in  1625. 

SELECT  REFERENCES 

BLAKEY,  History  of  Political  Literature,  Vol.  II,  chap.  ii. 
FIGGIS,  Divine  Right  of  Kings,  chaps,  iv  and  v.  FORTESCUE, 

1  Prothero,  Statutes  and  Documents,  p.  400.  Cf.  also  the  speech  to 
Parliament  in  1610 :  "  That  as  to  dispute  what  God  may  do  is  blas- 
phemy :  ...  so  is  it  sedition  in  subjects  to  dispute  what  a  king  may 
do  in  the  height  of  his  power."  — Prothero,  p.  294. 


\ 


218  POLITICAL   THEORIES 

Life  and  Works,  Vol.  I.  GARDINER,  History  of  England, 
chaps,  i,  ii,  xii,  xxii.  GOOCH,  English  Democratic  Ideas, 
pp.  59-72.  HALLAM,  Middle  Ages,  chap,  viii,  pt.  2.  HOOKER, 
Laws  of  Ecclesiastical  Polity,  Book  I,  in  Works,  Keble's  edi- 
tion, Vol.  I.  JAMES  I,  The  True  Law  of  Free  Monarchies. 
MORE,  Utopia.  POLLOCK  and  MAITLAND,  History  of  English 
Law,  Book  I,  chaps,  iii-vi.  PROTHERO,  Select  Statutes,  Intro- 
duction, pp.  xvii— xxxviii,  Ixi-lxx.  STUBBS,  Select  Charters, 
pp.  1-51. 


CHAPTER  VII 

THEORIES    OF   THE    PURITAN   REVOLUTION 

1.   Political  Doctrine  of  the  Parliament  Party 

THE  period  of  the  Puritan  Revolution  has  a  two-, 
fold  importance  in  the  history  of  political  theories. 
In  the  first  place  it  gave  systematic  form  and  con-y 
crete  expression  to  the  legalistic  ideas  that  had  Ion 
constituted  the  bulk  of  English  political  philosophy, 
In  the  second  place  it  took  over  into  England  the 
theories  of  secular  and  ecclesiastical  politics  that  had 
been  elaborated  on  the  Continent  during  the  Renais- 
sance and  the  Reformation,  blended  with  them  the 
virile  and  invigorating  influence  of  various  notable 
English  intellects,  and  prepared  them  for  re-trans- 
mission to  the  Continent  in  the  next  century,  when  , 
their  dominion  was  to  become  undisputed. 

Under  Charles  I  the  first  phase  of  the  revolution 
was  that  in  which  the  constitutional  issues  between 
king  and  Parliament  were  fought  to  a  finish  in  the 
triumph  of  Parliament.  No  more  than  in  the  reign 
of  James  I  was  the  conflict  here  largely  one  .of  ab- 
stract principles.  Though  Charles  asserted  with  per- 
sistent formality  that  he  was  answerable  for  his  acts 
to  God  alone,  yet  this  assertion  most  commonly  ap- 
peared as  the  prelude  to  an  exposition  of  the  grounds 

219 


220  POLITICAL   THEORIES 

of  his  policy  in  the  laws  and  constitution  of  England.1 
On  the  side  of  Parliament  the  Common  law  and  the 
great  pre-Tudor  statutes  were  the  whole  foundation 
of  its  cause  till  its  triumph  over  the  king  was  com- 
plete. The  Parliamentary  argument  embraced,  how- 
ever, two  distinct  tendencies  of  doctrine,  which 
occupied  very  different  positions  in  the  history  of 
political  theory.  The  first  consisted  essentially  in 
the  long  familiar  idea  that  the  king  was  subject 
to  law  and  that  law  had  its  source,  not  in  the  mon- 
arch, but  in  the  people,2  represented  by  its  historical 
organ,  the  Parliament.  This  was  merely  the  anti- 
monarchic  doctrine  which  had  received  very  complete 
development,  from  the  standpoint  of  Continental 
institutions,  in  the  Huguenot  and  Jesuit  thought  of 
the  sixteenth  century.  It  was  opposed,  as  we  shall 
see,  by  arguments  which  repeated  or  developed  those 
of  Bod  in  and  the  other  pro-monarchic  jurists.3 

In  quite  a  different  relation  to  the  history  of  po- 
litical thought  stands  the  second  tendency  in  Parlia- 
mentary doctrine.  This  was  a  distinctively  English 
^  development,  and  consisted  essentially  in  a  closer 
definition  of  "  people  "  in  terms  of  the  individuals 
composing  the  aggregate,  and  in  a  more  precise 
ascription  of  rights  to  each  of  these  individuals.  How 
loath  the  advocates  of  popular  sovereignty  had  always 

1  Cf.  his  speech  proroguing  Parliament  in  1628.     Gardiner,  Con- 
stitutional Documents,  p.  73. 

2  "  Nation  "  appears  frequently  in  the  writings  of  the  time  as  a 
variant  for  "  people." 

3  For  examples,  see  the  argument  of  Whitelocke  in  Bates's  Case 
(Prothero,  Select  Statutes,  p.  351),  and  that  of  Berkeley  in  the  Ship 
Money  Case  (Gardiner,  Constitutional  Documents,  p.  1?°  et  seq.). 


THE   PARLIAMENTARY  DOCTRINE  221 


been  to  conceive  of  the  "people"  as  consisting  of 
individuals  rather  than  groups  or  associations,  and 
to  concede  rights  against  the  monarch  to  individuals 
rather  than  to  estates  or  parliaments  or  corporations, 
has  been  indicated  in  our  examination  of  the  six- 
teen th-century  theories.  The  "  beast  with  a  thousand 
heads"  which  had  stimulated  the  invective  of  so 
good  a  friend  of  the  people  as  Languet  (or  whoever 
wrote  the  Vindicice  contra  Tyrannos)  was  an  ever 
present  terror  to  the  intellectual  and  political  classes. 
Nor  was  it  altogether  of  choice  that  the  Parliament 
men  of  England  gave  an  impulse  to  the  movement 
which  led  straight  through  the  "  rights  of  English- 
men" to  the  "rights  of  man."  Eliot,  Pym  and 
Hampden  would  have  been  entirely  satisfied  with 
the  recognition  of  the  political  rights  of  their  own 
social  and  economic  class,  which  controlled  Parlia- 
ment; but  the  resistance  of  the  king  forced  to  the 
front  the  controversies  which  produced,  first,  far- 
reaching  formulas  of  the  legal  rights  of  every  English- 
man, and  then  the  transfer  of  the  whole  discussion 
from  the  domain  of  English  law  to  that  of  the  law 
of  nature. 

It  was  in  connection  with  the  religious  phase  of 
the  Puritan  Revolution,  and  especially  through  the 
development  of  the  Independents,  to  be  noticed  below, 
that  the  tendency  just  referred  to  became  most  mani- 
fest. Yet  its  presence  in  the  purely  legal  phase  of 
the  conflict  was  not  obscure.  From  the  very  begin- 
ning of  Charles  I's  reign  Parliament  insisted  that 
the  law  of  the  land  guaranteed  various  specific 


222  POLITICAL  THEORIES 

privileges  of  every  subject  against  interference  by 
the  king.  In  the  Petition  of  Eight  (1628),  which 
marked  the  end  of  the  first  stage  in  Parliament's 
progress  to  victory,  the  specific  privileges  which  the 
king  recognized  were :  exemption  from  certain  forms 
of  taxes  save  when  imposed  by  act  of  Parliament ; 
the  right  to  learn,  through  the  writ  of  habeas  corpus, 
the  cause  of  imprisonment  or  detention  by  royal  order ; 
exemption  from  the  quartering  of  soldiers  and  from 
the  processes  of  martial  law.1  During  the  period  in 
which  the  king  ruled  without  Parliament  (1629-1640) 
various  additions  to  and  modifications  of  these  legal 
rights  were  asserted  and  tested  in  the  courts,  and  the 
custom  developed  of  summarizing  the  rights  con- 
cerned under  the  head  of  "person  and  estate,"  or 
f"  person  and  property."  These  were  described  as  the 
"  fundamental  liberties  "  of  the  kingdom,  and  during 
the  final  conflict  which  ended  in  the  overthrow  and 
death  of  the  king  the  formula  assumed  substantially 
the  shape  that  remained  familiar  for  centuries — "  life, 
liberty  and  property."  Thus  the  Grand  Remonstrance 
of  December  1,  1641,  which  was  Parliament's  plat- 
form for  the  approaching  conflict  of  arms,  declared 
that  the  abolition  of  the  Star  Chamber  and  the  High 
Commission  had  most  effectually  secured  men  "  in 
their  persons,  liberties  and  estates."  2  King  Charles, 
on  the  other  hand,  in  his  impeachment  of  the  Par- 
liamentary leaders,  charged  them  with  endeavouring 

1  The  Petition  of  Right  is  given  in  Gardiner,  Constitutional  Docu- 
ments, p.  66. 

2  Sec.  129.     Gardiner,  Constitutional  Documents,  p.  222. 


THE  PARLIAMENTARY  DOCTRINE  223 

to  set  up  an  arbitrary  power  over  "  the  lives,  liberties 
and  estates  "  of  his  Majesty's  people.1  And,  finally, 
Cromwell  could  find  no  more  fitting  climax  for  his 
indictment  of  the  Rump  Parliament,  after  he  had 
turned  it  out  of  doors,  than  the  fear  that  through 
its  inefficiency  the  "  lives,  liberties  and  comforts  "  2  of 
God's  people  would  be  delivered  into  the  hands  of 
their  enemies.3 

The  legal  and  constitutional  aspect,  then,  of  the  \ 
Puritan  Revolution  in  its  progress  up  to  the  establish-  » 
ment  of  the  Commonwealth,  shows  us  the  triumph  of 
limited,  as  contrasted  with  absolute,  monarchy  and  the 
pretty  clear  definition  of  those  individual  rights  which   * 
were  to  become  known  as  "  natural  rights."  \ 

All  this  was  achieved,  however,  through  the  appli-^ 
cation  and  expansion  of  that  Common  law  of  England  ^ 
whose  glory  had  been  proclaimed  by  Fortescue  and 
Coke,  but  whose  virtue  had  no  significance  beyond 
the  boundary  of  England.   For  the  development  of  the 
theories  which   accompanied,  and  in   some   measure 
determined,  the   affairs  of   the   Commonwealth  and 
Protectorate  we  must  turn  to  the  ecclesiastical  aspects 
of  the  upheaval. 

2.   Ecclesiastical  Doctrine  of  the  Parliament  Party 

It  is  a  familiar  fact  of  history  that  the  end  of 
Charles  I's  absolute  government  was  the  direct  con- 
sequence of  his  attempt,  in  1637,  to  enforce  a  new 

1  Gardiner,  op.  cit.,  p.  236. 

2  Cromwell's  "comforts"  is  at  least  equal  to  Jefferson's  "pursuit 
of  happiness,"  as  a  synonym  for  "  property." 

8  Gardiner,  op.  cit.,  p.  401. 


224:  POLITICAL  THEORIES 

liturgy  in  Scotland.  The  resistance  of  the  Scots  not 
only  revolutionized  the  church  in  Scotland,  but  so 
embarrassed  the  king  in  England  that  he  was  obliged 
to  summon  the  Parliament  that  eventually  dethroned 
him.  Ecclesiastically  the  overturn  in  Scotland  con- 
sisted in  the  abolition  of  the  Episcopacy  and  the 
establishment  of  a  Presbyterian  form  of  church  gov- 
ernment on  the  lines  which  Knox  had  derived  from 
Calvin.  This  signified  the  ultimate  triumph  of  the 
anti-prelatical  ideas  and  tendencies  which  James  I 
had  succeeded  in  resisting  in  both  Scotland  and  Eng- 
land.1 How  closely  these  ideas  and  tendencies  were 
related  to  the  anti-monarchic  political  doctrines  of  the 
sixteenth  century,  has  been  made  evident  in  the  ac- 
count of  the  Calvinistic  monarchomachs.  The  rela- 
tionship appeared  now  in  the  procedure  by  which  the 
Scottish  nation  organized  itself  against  the  king  —  the 
famous  Covenant  of  1638.2  With  a  conscious  and  ob- 
vious reference  to  the  covenants  of  the  Old  Testament 
by  which  the  Chosen  People  had  confirmed  their  alle- 
giance to  Jehovah  and  to  their  king,  the  Scots  pledged 
themselves  to  maintain  the  worship  of  God  as  ordered 
in  their  kirk  and  to  sustain  and  reverence  their  king 
so  long  as  he  conformed  to  the  laws  of  the  kirk  and 
of  Parliament.8  In  both  form  and  fact,  thus,  the 
Scottish  people  exemplified  the  theories  which  had 
been  developed  by  Languet  and  Buchanan. 

The  effect  of  the  Scottish  example  on  the  ecclesias- 

1  Supra,  pp.  214  et  seq. 

2  Text  in  Gardiner,  Constitutional  Documents,  p.  124. 

8  This  is  the  substance  of  an  enormously  verbose  document. 


EPISCOPACY  OVERTHROWN  225 


tical  situation  in  England  was  very  important.  Op- 
position to  Episcopacy  on  merely  ecclesiastical  grounds 
had  been  much  less  keen  in  the  southern  than  in  the 
northern  kingdom.  But  the  arbitrary  methods  by 
which  Archbishop  Laud  had  enforced  conformity 
upon  the  not  unimportant  Puritan  element  in  Eng- 
land, and  the  extreme  ground  taken  by  certain  high 
prelates  for  the  divine  right  of  bishops  as  well  as  of 
kings,  involved  Episcopacy  in  the  destruction  which 
the  Long  Parliament  meted  out  to  all  the  supports 
of  the  royal  policy.  The  time  had  now  come  for 
England  to  decide  finally  the  questions  of  church 
government  which  had  been  already  solved,  though 
with  much  effort,  by  the  Continental  nations  that 
had  revolted  from  Rome.1  Henry  VIII's  peculiar 
method  of  severing  relations  with  the  Papacy  had 
prevented  these  questions  from  coming  to  a  definitive 
issue  before.  But  after  the  downfall  of  Laud  all  the 
diverse  opinions  as  to  church  organization  and  the 
relation  of  state  and  church  that  had  closely  followed 
the  Lutheran  movement  on  the  Continent  came  to 
the  front  in  England.2  Parliament  was  somewhat 
easily  moved  to  destroy  prelacy,  so  far  as  it  involved 
political  functions.  The  bishops  and  other  church 
officials  were  deprived  of  all  right  to  sit  in  Parliament 
or  to  exercise  any  sort  of  political  or  judicial  author- 
ity.3 This  settled  one  phase  of  the  matter.  But 

1  Supra,  pp.  3  et  seq. 

2  For  the  sects  that  appeared  in  England,  see  Masson,  Life  of 
Milton,  III,  136  et  seq. 

8  Act  of  16  Car.  I,  c.  27.     Gardiner,  Constitutional  Documents,  p. 
241. 


226  POLITICAL  THEORIES 

whether  bishops  should  be  retained  for  purely  ecclesi- 
astical functions,  was  another  question.  The  answer 
was  given  when  Parliament  voted  that  the  Presbyte- 
rian  system  of  organization  and  government  should 
be  introduced  into  the  Church  of  England.1  / 

Two  causes  chiefly  had  contributed  to  this  result, 
and  each  had  a  distinct  importance  in  the  general 
development  of  political  theory.  The  first  cause  was 
the  enormous  influence  acquired  by  the  Scottish  poli- 
ticians and  divines  through  the  necessity  of  Scottish 
aid  in  Parliament's  war  with  the  king.  The  alliance 
of  England  and  Scotland  against  their  common  king 
had  been  effected  by  the  Solemn  League  arid  Cove- 
nant 2  in  1643.  This  instrument  expressed  in  both 
its  form  and  its  substance  the  political  ideas  that  had 
been  characteristic  of  militant  Calvinism.  Its  form 
was  not  that  of  an  ordinary  treaty  between  govern- 
ments, but  that  of  a  mutual  agreement,  signed  and 
sworn  to  by  each  individual  for  himself,  undertaken 
by  the  "  noblemen,  barons,  knights,  gentlemen,  citi- 
zens, burgesses,  ministers  of  the  Gospel,  and  com- 
mons of  all  sorts  in  the  kingdoms  of  England, 
Scotland  and  Ireland."  It  reproduced,  thus,  the 
character  of  the  Scottish  National  Covenant  of  1638, 
and  carried  fully  over  into  England  the  conceptions 
of  national  popular  sovereignty  that  were  implied  in 
that  instrument  and  its  application.  The  signing  of 
the  League  and  Covenant  became  a  test  in  England 

1  Masson,  III,  173-175. 

2  Text  in   Gardiner,  Constitutional  Documents,  p.  267.     For   the 
circumstances  of  its  adoption  see  Gardiner,  The  Great  Civil  War,  I, 
268  et  seq. ;  Masson,  Life  of  Milton,  III,  6  et  seq. 


THE  SOLEMN  LEAGUE  AND  COVENANT  227 

of  a  man's  adhesion  to  the  cause  of  Parliament 
against  the  king.  Under  such  circumstances  the 
anti-monarchic  trend  of  the  movement  was  compre- 
hensible to  the  dullest,  while  the  appeal  to  each 
individual,  rather  than  to  representative  bodies, 
whether  municipal,  provincial  or  national,  could  not 
but  suggest  a  conception  of  "  people  "  and  of  the  con- 
tractual basis  of  government  that  was  very  different 
from  what  the  Continental  monarchomachs  had  set 
forth.  In  its  substance,  however,  the  League  and 
Covenant  aimed  to  counteract  any  baneful  tendencies 
toward  democracy  by  setting  first  among  the  ends  to  be 
attained  the  reformation  of  church  and  religion  so  as 
to  conform  to  the  Scottish  system.  It  called  for  the 
extirpation  not  only  of  Popery  and  prelacy,1  but  also 
of  "superstition,  heresy,  schism,  profaneness"  and 
everything  contrary  to  sound  doctrine  and  to  godli- 
ness. This  was  well  understood  to  signify  that  the 
rule  of  conformity  was  to  be  as  rigorous  under  Pres- 
byterian as  it  had  been  under  Episcopal  organization, 
and  that  Parliament  was  to  enforce  the  moral  and 
religious  discipline  prescribed  by  ministers  and  elders 
as  strictly  as  Charles  I  had  enforced  the  prescriptions 
of  Archbishop  Laud  and  his  coadjutors.  Not  unregu- 
lated democracy,  but  the  Calvinistic  aristocracy,  was 
to  prevail  in  the  reformed  system  which  was  to  be 
introduced  by  the  League  and  Covenant. 

The  second  cause  that   efficiently  contributed  to 

1  Prelacy  was  defined  as  meaning  "  Church  government  by  Arch- 
bishops, Bishops,  their  Chancellors  and  Commissaries,  Deans,  Deans 
and  Chapters,  Archdeacons  and  all  other  ecclesiastical  officers  depend- 
ing on  that  hierarchy."  —  Art.  II. 


228  POLITICAL  THEORIES 

the  establishment  of  Presbyterianism  by  Parliament 
is  suggested  by  what  has  just  been  said.  In  the  ex- 
citement and  confusion  of  the  breach  between  the 
Long  Parliament  and  the  king  all  restraint  on  the 
multiplication  of  sects  and  sectaries  had  been  lost 
sight  of,  and  England  teemed  with  doctrines,  both 
religious  and  political,  that  would  be  extravagant  at 
any  time,  and  that  to  conservative  contemporaries 
seemed  to  threaten  social  anarchy.  The  hope  of  set- 
ting some  bound  to  the  radicalism  that  unrestrained 
private  judgment  was  promoting,  won  to  the  support 
of  the  new  establishment  many  who  had  little  liking 
for  Scottish  Presbyterianism  in  its  ecclesiastical 
or  its  moral  aspects.  The  sequel  proved,  however, 
that  such  hope  was  fallacious.  In  effective  opposi- 
tion to  the  established  church  stood  that  body  of 
sectaries  who,  whatever  their  divergences  on  other 
points,  agreed  in  contending  that  their  creed  and 
worship  should  not  be  a  subject  for  regulation  by 
the  government.  Under  the  name  of  Independents 
they  won  the  support  of  the  military  dictator  whom 
the  development  of  the  revolution  produced,  and  their 
ideas  prevailed  in  the  Cromwellian  regime  of  the 
Commonwealth  and  Protectorate.  The  importance 
of  the  Independents  in  the  history  of  political  theory 
is  very  great.  They  included  thinkers  whose  names 
stand  high  in  the  list  of  influential  contributors  to 
the  modern  philosophy  of  government.  Moreove 
the  theories  incidental  to  the  Independent  movement  , 
added  two  items  to  that  series  of  "  natural  rights  " 
which  played  so  large  a  part  in  the  thought  of  the 


THE  INDEPENDENTS  229 

eighteenth  and  nineteenth  centuries.  The  jurists  of 
the  Common  law  were,  as  we  have  seen,  largely 
responsible  for  the  formula  which  ascribed  first  to 
Englishmen  and  then  to  all  men  the  inalienable  rights 
of  life,  liberty  and  property.  In  much  the  same 
sense  the  Independents  of  the  Puritan  Revolution  are 
responsible  for  the  rights  of  freedom  of  worship  and 
freedom  of  expression. 

3.    The  Development  of  Independency 

From  the  theological  and  ecclesiastical  point  of 
view  the  Independents  were  the  radicals  of  the 
Reformation  in  England.  They  represented  that 
same  extension  of  the  principle  of  private  judgment 
in  interpreting  the  Scriptures  that  had  given  so  much 
trouble  to  the  Continental  Reformers.  To  a  national 
church  they  manifested  the  same  repulsion  as  to  the 
universal  church  under  Rome,  and  they  rejected  every 
prescription  of  creed  or  ritual  or  discipline  save  what 
the  individual  Christian  took  upon  himself.  That 
such  an  attitude  was  incompatible  with  any  conception 
of  a  church  that  had  prevailed  in  thirteen  centuries, 
goes  without  saying ;  and  that  the  political  implica- 
tions of  it  were  radically  democratic,  was  entirely  clear 
to  contemporaries.  It  is  not  strange  that  the  earliest 
holders  and  exponents  of  these  doctrines  suffered  as 
much  persecution  as  they  did;  that  they  did  not 
suffer  more  was  due  to  the  fact  that  they  were  in  the 
main  orderly  and  law-abiding  people  in  all  that  con- 
cerned non-ecclesiastical  relations. 

The  first  manifestation  of  Independency  in  Eng- 


230  POLITICAL  THEORIES 

landjvas  the  teaching  of  Browne  and  Barrow  in  the 
reigiij)f  Elizabeth 


obscure  Congregations   of    Brownist   ideas,   as   they 
were  called.     In  substance  these  ideas  were  that  any 

to 


manage  its  discipline^nd/worship  according  to  its  own 
view  of  the  law  of  God,  ajidj^mtj^ej^^ 
government  had  _  jiojuxthorityLta  ^enforce.  .sjibmission  to 
any  particular  ecclesiastical  system^  Brqwjiism  im- 

in 


church  institution  and  government,1  and  toleration  as, 
the  principle  of  the  state's  relation  toward  religious 
worship.  Practically,  however,  the  aim  of  the  Brown- 
ists  was  not  general  toleration,  but  escape  from  the 
harrying  to  which  they,  like  the  rest  of  the  Puritans, 
were  subjected  by  the  Episcopal  authorities.  Under 
James  I  and  Charles  I  the  steady  increase  in  the  num- 
ber of  the  Puritans  and  the  corresponding  increase  of 
rigour  on  the  part  of  the  bishops  in  their  efforts  to 
maintain  conformity  produced  that  Separatist  move- 
ment of  which  the  most  famous  result  was  the  settle- 
ment of  New  England. 

In  America  all  the  conditions,  ecclesiastical,  social 
and  political,  were  favourable  for  the  full  unfolding  of 
the  theories  implicit  in  the  Independent  doctrine. 
The  colonists  were  securely  beyond  the  range  of  re- 
straint by  the  bishops  ;  the  inhospitable  character  of 

1  Browne  defined  a  church  as  "  a  company  or  number  of  Christians 
or  believers,  which,  by  a  willing  covenant  made  with  their  God,  are 
under  the  government  of  God  and  Christ  and  keep  his  laws  in  one 
holy  communion."  Prothero,  Statutes  and  Documents,  224.  See 
Osgood,  in  Political  Science  Quarterly,  VI,  13-15.  An  excellent  sketch 
of  the  history  of  Independency  may  be  found  in  Masson,  II,  534  et  seq. 


NEW   ENGLAND   INDEPENDENCY  231 

the  land  and  of  its  aboriginal  inhabitants  rendered  in- 
evitable a  high  degree  of  social  cohesion  and  economic 
equality;  and  the  remoteness  and  preoccupation  of 
the  royal  government  prevented  any  effective  control 
from  England  over  the  political  institutions  that  de- 
veloped. There  resulted  that  aggregate  of  communi- 
ties, democratic  in  institution  and  independent  in 
both  ecclesiastical  and  secular  organization,  which  con- 
stituted colonial  New  England.  Here  Independency 
was  first  realized  on  a  significant  scale.  The  self- 
constituted  congregation  of  worshippers  was  the  pri- 
mary aspect  of  each  community,  and  the  political 
organization  was  effected  in  conscious  or  unconscious 
imitation  of  the  ecclesiastical.  Covenant  or  compact 
—  the  express  consent  of  each  individual  to  the 
formation  or  perpetuation  of  the  community  —  was 
universally  accepted  as  the  basis  of  a  community, 
whether  religious  or  political,  and  the  early  history 
of  New  England  abounds  in  applications  of  this  ide* 
in  concrete  cases.1  The  Mayflower  Compact,  the 
Fundamental  Orders  of  Connecticut  and  the  Newport 
Declaration2  expressed  without  disguise  or  reserva- 
tion the  democratic  principles  that  were  only  latent 
in  the  Scottish  National  Covenant  of  1638.  The  whole 
tendency  of  conditions  in  America,  indeed,  was 
set  in  full  view  everything  involved  in  Independency, 
whether  theoretical  or  practical.  The  consequence 
was  that  when,  after  the  assembling  of  the  Long 
Parliament,  the  ecclesiastical  revolution  began,  New 

1  See  Merriam,  History  of  American  Political  Theories,  pp.  17  et  seq. 

2  Especially  this  last  one,  cited  by  Merriam  from  R.  I.  Records, 
I,  112. 


232  POLITICAL  THEORIES 

England  contributed  materially  to  the  theories  which 
triumphed  in  the  Cromwellian  regime.1 

Probably  the  most  important  of  these  contributions^ 
so  far  as  political  bearings  were  involved,  was  the 
formal  theory  of  toleration  which  was  set  forth  by 

"  Roger  Williams.  The  Puritans  of  Massachusetts  had 
adopted  a  system  which,  in  the  adjustment  of  rela- 
tions between  secular  and  ecclesiastical  authority, 
had  much  of  the  theocratic  character  of  Calvin's 
regime  in  Geneva.  Williams  had  been  banished  from 
the  colony  for  refusing  to  conform  to  the  standard 
of  belief  and  practice  set  by  the  ministers,  and  his  ' 

*-  Bloudy  Tenent  of  Persecution,  though  written  in 
England,  1644,  with  immediate  reference  to  current 
controversies  there,  derived  its  inspiration  and  its  form 
from  his  American  experience.2  It  was  a  radical  plea 
for  freedom  of  conscience,  shrinking  from  none  of  those 
extreme  logical  implications  of  the  doctrine  that  stag- 
gered less  resolute  advocates.3  To  Williams  a  church 
was  merely  a  group  of  individuals  united  for  a  pur- 
pose which  was  of  no  more  concern  to  the  civil  magis- 
trates than  the  purpose  of  any  other  group,  such  as  a 
trading  company  or  a  medical  society.  What  belief 
was  professed  or  what  form  of  worship  was  exercised, 
was  a  question  beyond  the  competence  of  the  govern- 

1  For  the  reflex   action  of  New  England  on  old  England,  see 
Osgood,  in  Political  Science  Quarterly,  VI,  216  et  seq. 

2  The  work,  edited   by  E.   B.   Underbill,   was  reprinted  by  the    ' 
Hanserd  Knollys  Society,  London,  1848.     For  the  circumstances  of 
its  publication    see    Underbill's   Introduction.      Also,   Osgood    and 
Merriam,  op.  cit.,  and  Masson,  III,  113  et  seq. 

3  For  the  various  shades  of  belief  in  toleration  at  this  time  see 
Masson,  III,  122  et  seq. 


ROGER  WILLIAMS  233 


mental  authorities,  so  long  as  the  laws  for  the  main- 
tenance of  peace  and  order  were  not  infringed.  Jews, 
Turks  and  even  Papists  ("  upon  good  assurance  given 
of  civil  obedience  to  the  civil  state ")  must  be  left 
alone  by  the  secular  power.  The  duty  of  the  civil 
magistrate  was  summed  up  by  Williams  thus  :  To 
the  religion  which  his  conscience  tells  him  is  the  true 
one — approbation,  personal  submission  and  protec- 
tion ;  to  one  which  he  believes  false  —  permission 
and  protection.1  Thus  the  promotion  of  the  true 
faith,  which  had  for  twelve  centuries  stood  first 
among  the  recognized  functions  of  government,  was 
dropped  out  of  the  category.  Roger  Williams,  a 
Puritan  of  the  Puritans,  here  joins  hands  with  the 
wholly  un-Puritan  Machiavelli  in  an  appeal  to  the 
principle  of  pagan  Rome. 

But  the  spirit  in  which  Williams  defends  his 
thesis  is  anything  but  Machiavellian.  Texts  from 
Scripture,  with  interpretations  as  far-fetched  and 
fanciful  as  any  produced  by  the  mediseval  scholastics, 
are  the  main  feature  of  his  argument.2  Only  second- 
ary to  this  is  the  argument  db  inconvenientia  —  the 
exposition  of  the  inconsistencies  and  inhumanity  that 
attend  the  supervision  of  religious  belief  by  the  secular 
government.3  Toleration  is  the  true  principle,  first 
because  God  enjoins  it,  and  only  second  because 

1  The  Bloudy  Tenent,  chap.  cxxv. 

2  To  derive  toleration  from  the  history  of  the  Israelites  in  Canaan 
was  naturally  a  serious  task.    For  the  matter  of  Elijah  and  the 
prophets  of  Baal,  see  the  Bloudy  Tenent,  chap.  Ixxvi. 

«  He  frequently  recurs  to  the  thought  that  without  toleration  in 
practice  the  greater  part  of  the  race  would  have  been  destroyed  for 
idolatry  and  non-conformity.  —  Cf.  chaps,  xcvii,  ci,  cxiii. 


234  POLITICAL  THEORIES 

it  is  politically  and  socially  expedient.  Yet  the 
fact  that  the  argument  from  expediency  is  used  at  all 
is  significant.  Taken  in  connection  with  the  demo- 
cratic dogma  which  Williams  propounds  —  that  civil 
government  is  based  on  the  consent  of  the  people, 
expressed  in  an  original  compact  —  it  indicates  a 
tendency  toward  those  more  extreme  and  purely 
rationalistic  methods  of  thought  which  were  charac- 
teristic of  the  Levellers.  The  Bloudy  Tenent,  in  other 
words,  expresses  essentially  the  resolution  of  a  body 
of  religious  sectaries,  the  Independents,  not  to  be 
dominated  by  another  such  body,  the  Presbyterians; 
while  the  fuller  implications  of  the  theory  which  the 
work  embodied  were  revealed  in  the  political  revolu- 
tion which  was  effected  in  1647-1648  by  the  army. 

4.   Political  Theory  of  the  Commonwealth 

It  was  the  steadfast  refusal  of  the  Presbyterian 
majority  in  Parliament  to  adopt  the  principle  of  a 
broad  toleration,  that  led  to  the  overthrow  of  both 
Parliament  and  monarchy.  The  army,  both  officers 
and  rank  and  file,  was  strongly  Independent  in  feeling. 
After  crushing  out  the  last  vestiges  of  royalist  military 
opposition  in  England  the  soldiers  in  their  canton- 
ments came  much  under  the  influence  of  the  most 
radical  of  the  sectaries  —  those  generally  known 
later  as  Levellers.  In  1647  Parliament  voted  the 
disbandment  of  the  army,  but  the  order  was  disobeyed. 
The  soldiers,  urging  certain  grievances  in  respect  to 
their  pay,  took  things  into  their  own  hands,  drove 
away  the  officers  whom  they  disliked,  and  organized 


THE   COMMONWEALTH  235 


a  council,  consisting  of  representatives  elected  by  each 
regiment,  to  direct  action  for  the  common  interest. 
To  this  council  were  ultimately  added  those  general 
officers  who  espoused  the  cause  of  the  army,  includ- 
ing Cromwell  and  Ire  ton,  while  the  elected  represent- 
atives of  each  regiment  were  made  to  comprise  two 
commissioned  officers  and  two  privates.1  The  army, 
thus  organized,  became  after  the  middle  of  1647  the 
controlling  factor  in  the  political  as  well  as  thex 
military  affairs  of  England.  It  took  the  captive  King 
Charles  into  its  custody  ;  overawed  Parliament  and, 
by  purging  that  body  of  Presbyterians,  reduced  it  to 
a  Rump;  suppressed  the  renewed  royalist  uprising 
in  the  second  Civil  War ;  and  finally  brought  the 
king  to  the  scaffold  and  abolished  the  monarchy.  In 
the  stress  of  renewed  war  the  democratic  elements  in 
the  constitution  of  the  army  gave  way  to  the  normal 
forms  required  by  military  discipline ; 2  and  ultimately 
the  prestige  of  the  victorious  commander  produced 
the  monarchic  Protectorate.  To  the  end  of  the 
Cromwellian  regime,  however,  there  persisted  the 
influence  of  certain  radical  ideas  which  found  their 
first  clear  formulation  in  the  controversies  of  the 
period  when  the  army  was  taking  the  affairs  of  the 
realm  into  its  own  hands. 

For  our  purpose  these  controversies  may  be  regarded 
as  concerned,  first,  with  the  source,  content  and 
possessors  of  the  rights  which  all  the  anti-royalist 

1  Gardiner,  Civil  War,  III,  101. 

2  The  elected  representatives  of  the  rank  and  file  ceased  to  partici- 
pate in  the  conduct  of  the  army's  policy  in  January,  1648.     Firth, 
Preface  to  The  Clarke  Papers,  p.  Iviii. 


236  POLITICAL  THEORIES 

factions  held  to  belong  to  "  the  people  "  ;  and  second,  \ 
with  the  constitutional  and  governmental  arrange-  ; 
ments  through  which  these  rights  were  to  be  made; 
effective. 

As  to  the  source  of  these  rights,  we  have  in  the 
doctrines  preached  by  the  Levellers,  or  extremest 
Independents,  a  pretty  complete  transfer  of  the  debate 
from  the  law  of  England,  upon  which  the  earliest 
exponents  of  the  Parliamentary  cause  had  depended, 
to  the  law  of  nature,  and  a  perceptible  tendency  to 
emphasize  reason  rather  than  Revelation  in  the 
development  of  the  argument.  As  Edwards  says  of 
the  sectaries  in  his  Gangrcena :  "  Though  the  lawes 
and  customes  of  a  kingdom  be  never  so  plain  and 
cleer  against  their  wayes,  yet  they  will  not  submit, 
but  cry  out  for  naturall  rights  derived  from  Adam 
and  right  reason."  1  The  body  of  natural  rights  thus 
insisted  upon  was  held  to  embrace  specifically  those  of 
life,  liberty  and  property,  freedom  of  conscience  and  ex- 
pression, and  equality  in  political  privilege.  Equality, 
indeed,  was  the  mainstay  of  the  extremists'  doctrine, 
and  was  the  basis  of  their  argument  for  manhood  suf- 
frage. The  right  to  vote  for  representatives  was  held 
to  be  an  immediate  corollary  of  the  principle  that  every 
man  was  by  nature  free  and  could  be  subjected  to 
government  only  by  his  own  consent ;  for  government 
must  be  by  law  and  law  must  be  the  will  of  each 
individual,  expressed  either  in  person  or  through  a 
representative.  This  radical  democratic  conception 
was  associated  to  some  extent  with  the  further  idea 

1  Quoted  by  Firth,  Preface  to  The  Clarke  Papers,  p.  Ix. 


THE  LEVELLERS  237 


that  equality  in  property  as  well  as  in  the  franchise 
was  the  natural  right  of  every  man ;  and  it  was 
apparently  this  feature  of  the  Levellers'  programme 
that  was  most  influential  in  causing  Ireton  and 
Cromwell  to  oppose  them  and  thwart  their  projects 
in  the  council  of  the  army.1  But  whatever  the  pre- 
cise content  of  natural  rights,  the  possession  of  such 
rights  was  an  attribute,  the  extremists  clearly  main- 
tained, not  of  the  people  considered  collectively  or  as 
organized  in  traditionary  corporations  or  parliaments, 
but  of  the  people  considered  individually.  In  the 
multitudinous  manifestoes 2  of  the  Levellers  this 
individualization  of  natural  rights  is  constantly  dis- 
cernible, and  the  thought  of  these  men  marks  a  con- 
spicuous stage  in  the  transition  from  the  ancient 
notion  of  rights  of  the  people  to  the  modern  notion 
of  the  rights  of  man.  There  had  been  something  of 
individualism  in  the  Scottish  Covenant  and  similar 
papers,  but  as  compared  with  that  of  the  Levellers  it 
was  mechanical  rather  than  conscious. 

The  constitutional  and  governmental  arrange- 
ments through  which  the  army  proposed  to  make  its 
doctrines  effective  are  to  be  seen  in  the  various  docu- 
ments in  which  the  programme  of  the  Independents 

1  For  Ireton's  strenuous  opposition  to  manhood  suffrage,  on  the 
ground  that  it  endangered  property,  see  Clarice  Papers,  I,  299  et  seq. 
Rainborow  makes  the  best  presentation  of  the  Levellers'  case  in  this 
debate ;  esp.  pp.  303  et  seq. 

2  The  most  prolific  source  of  these  was  Lieutenant  Colonel  John 
Lilburne,  for  whose  career  see   Gooch,  Democratic   Ideas,  141,  200. 
There  is  a  volume  containing  thirteen  of  Lilburne's  pamphlets  in  the 
library  of  Columbia  University.     Most  of  the  catchwords  of  modern 
democracy  are  to  be  found  in  his  writings ;  e.g.  "  We  the  people,"  in 
his  Vox  Plebis. 


238  POLITICAL  THEORIES 

was  embodied.  Most  important  of  these  was  that 
called  "  The  Agreement  of  the  People,"  framed  by 
the  council  of  the  army  in  1647,  as  the  basis  for  an 
adjustment  with  the  king  and  Parliament,  and  pub- 
lished, in  a  much  modified  form,  at  the  time  of  the 
execution  of  Charles  in  January,  1649.1  This  paper 
itself,  and  the  debates  in  which  it  took  its  shape,  throw 
most  important  light  on  the  currents  of  political 
theory  in  the  army.2  We  are  enabled  to  see  the  first 
complete  manifestation  of  the  principles  and  pro- 
cedure which  later  became  familiar  in  the  form  of 
constitutional  conventions  and  written  constitutions. 
The  "Agreement  of  the  People"  was  in  fact  a  draft 
constitution  for  the  Commonwealth  —  a  draft,  how- 
ever, which  was  prevented  by  circumstances  from  ever 
going  into  effect.3 

The  most  significant  of  its  features,  from  our  point 
of  view,  were  the  following :  It  declared  itself  to  be 
an  expression  of  the  will  of  the  people,  and  made  the 
meaning  of  this  declaration  entirely  clear  by  provid- 
ing that  every  individual  who  was  included  in  "  the 
people  "  should  sign  the  document.  Its  leading  pur- 
pose was  to  provide  a  clear  and  unmistakable  mode 
of  organization  and  action  for  the  Parliament,  as 

1  Both  drafts  are  in  Gardiner,  Constitutional  Documents,  pp.  333, 
359. 

3  The  debates  are  pretty  fully  reported  in  The  Clarke  Papers ; 
Preface,  pp.  xlviii  et  seq.y  with  the  text  as  therein  indicated,  and  Vol. 

II,  Preface,  pp.  xv  et  seq.,  with  the  text.     Also,  Gardiner,  Civil  War, 

III,  210  et  seq.  (chap.  Iv). 

8  Many  of  its  provisions  for  the  actual  organization  of  government 
were  enacted  by  the  Rump  and  appeared  also  in  the  Instrument  of 
Government. 


THE  AGREEMENT  OF  THE  PEOPLE  239 


representatives  of  the  people  —  which  purpose  was 
effected  through  the  scheme  of  a  single  body,  to  be 
elected  biennially  by  constituencies  substantially 
equal  in  population,  and  to  be  intrusted  with  the 
supreme  powers  of  government.  That  the  authority 
of  this  body  was  delegated,  however,  and  not  origi- 
nal, was  distinctly  declared  through  the  express 
reservation  of  certain  matters  from  its  competency. 
Among  these  things  reserved  were  final  judgment 
"  concerning  things  spiritual  or  evangelical,"  the 
conferring  of  privileges,  bills  of  attainder  (save  in 
case  of  officers  abusing  their  trust),  and  the  security 
of  private  property.  These  reservations  constituted 
what  later  came  to  be  known  as  a  bill  of  rights  in 
behalf  of  the  individual  as  against  the  government. 
The  guarantee  of  these  rights,  furthermore,  was 
unmistakably  insured  by  the  inclusion  of  them  in  a 
list  of  the  provisions  "  fundamental  to  our  common 
right,  liberty  and  safety,"  and  the  declaration  that 
it  should  not  be  treason  to  resist  the  representative 
body  if  it  should  "render  up  or  give  or  take  away" 
these  fundamentals.1  That  is  to  say,  the  right  of 
resistance  against  the  government  was  expressly 
ascribed  to  the  people. 

This  famous  document  is  the  nearest  approach 
ever  made  in  England  to  the  recognition  of  an 
authority  capable  of  self-expression  higher  than  the 
ordinary  legislature.  If  the  Agreement  had  been 
put  into  operation  as  contemplated  by  its  framers,  it 
would  have  stood  as  the  expressed  will,  not  of  Parlia- 

i  Draft  published  in  January,  1649,  sec.  10. 


240  POLITICAL  THEORIES 

ment,  but  of  the  people  considered  as  individuals. 
It  would  have  realized  far  more  completely  than  the 
Scottish  Covenant  the  ordaining  of  government  and 
law  through  consent  and  compact.  Yet  the  source 
of  this  extreme  democratic  principle  in  the  Agree- 
ment was  not  abstract  philosophy,  but  the  distrust 
felt  by  Ire  ton  and  the  other  army  leaders  toward  the 
Presbyterian  Parliament;1  and  the  failure  of  the 
paper  to  go  into  effect  was  due  to  the  fact  that, 
when  Parliament  had  been  purged  of  Presbyterians, 
these  same  leaders  felt  that  it  was  safer  to  carry 
through  their  revolution  under  cover  of  the  sacred 
name  of  Parliament  than  to  display  the  catastrophe 
without  disguise.  How  utterly  disgusted  with  this 
policy  were  the  real  democrats  of  the  day  —  the 
Levellers,  may  be  seen  in  the  furious  assaults  of 
Lilburne2  and  others  upon  the  Kump  and  all  its 
works.  In  these  sectaries  was  the  true  logic  of  the 
system  which  the  Agreement  embodied.  But  this 
logic  meant  ultimately  universal  suffrage  and  doc- 
trines as  to  property  that  Cromwell  and  Ireton  could 
never  accept ;  hence  the  Rump,  without  resort  to  the 
people  in  general,  was  used  as  the  instrument  of  th$ 
revolution.  Later  this  fear  of  radicalism,  on  the  one! 
hand,  with  the  probability,  on  the  other,  that  a  free 
election  for  Parliament  would  go  against  Indepen- 
dency, if  not  against  the  whole  Commonwealth  idea, 
was  the  underlying  cause  of  the  transformation  into 
the  Protectorate. 

1  Cf.  Gardiner,  Civil  War,  III,  118. 

2  See  his  Fundamental  Liberties  of  England. 


THE  INFLUENCE  OF  MILTON  241 

The  military  government  administered  by  Cromwell 
as  Lord  Protector  expressed  no  theory  of  politics.  It 
was  felt  by  contemporaries  to  be  merely  a  transitory 
condition.  No  philosophy  save  the  recognition  of 
compelling  necessity  was  produced  to  justify  it.  The 
political  speculation  of  the  period  turned  wholly  upon 
the  questions  as  to  whether  commonwealth  or  mon- 
archy should  become  the  permanent  system,  and  in 
what  particular  form  the  one  or  the  other  should  be 
organized.  In  the  debates  on  these  questions  the 
theories  and  the  theorists  of  the  Commonwealth  pe- 
riod retained  the  chief  place. 

5.    TJie  Political  Ideas  of  Milton 

In  the  writings  of  the  extremists  like  Lilburne  the 
basic  principles  of  the  Puritan  Revolution  are  abun- 
dantly illustrated,  and  the  blending  of  ideas  derived 
from  English  law  with  those  obtained  from  the  Scrip- 
tures and  from  the  theories  about  the  law  of  nature, 
is  thoroughly  effected.  But  the  form  and  manner  of 
the  Levellers'  philosophy  were  so  lax  and  incoherent 
that  little  effect  of  it  was  manifest  save  in  the  surg- 
ings  to  and  fro  of  popular  interest  in  England  itself. 
Far  different  was  the  case  with  the  works  in  which 
the  cause  of  the  Commonwealth  was  sustained  and 
defended  by  John  Milton.  Not  only  in  England,  but 
also,  especially  after  his  crushing  reply  to  Salmasius, 
all  over  the  Continent,1  the  learning,  logical  power 
and  literary  form  of  his  writings  wrought  powerfully 
for  the  promotion  of  the  principles  which  he  espoused. 

1  Masson,  Milton,  IV,  316  et  seq. 

VOL.    II. R 


242  POLITICAL  THEORIES 

Not  so  much  because  of  novelty  in  essence  as  because 
of  philosophic  breadth  and  force  in  formulation  and 
permanence  in  influence,  his  theories  must  be  briefly 
examined. 

As  to  the  origin  and  end  of  government,  Milton's 
doctrine  1  is  that  of  the  sixteenth-century  monarch- 
omachs,  so  presented,  however,  as  to  emphasize  the 
rationalistic  rather  than  the  Scriptural  supports  of 
the  theory.  "  All  men  naturally  were  born  free," 
and  were  endowed  with  the  right  and  power  of  self- 
defence  and  preservation.  To  avoid  the  discord  and 
violence  that  sprang  from  Adam's  transgression,  cities 
and  commonwealths  were  founded  by  agreement  of 
men  with  one  another,  and  kings  and  magistrates 
were  chosen  "as  deputies  and  commissioners  to  ex- 
ecute .  .  .  that  justice  which  else  every  man  by  the 
bond  of  nature  and  of  covenant  must  have  executed 
for  himself  and  for  one  another."  Further,  to  guard 
against  the  perverse  tendencies  of  the  persons  thus 
intrusted  with  authority,  laws  were  devised,  "either 
framed  or  consented  to  by  all,"  to  limit  the  action  of 
the  governors.  Kings  and  magistrates,  thus,  are  but 
the  agents  of  the  people  ;  they  possess  no  power  save 
what  is  originally  in  every  man  and  is  delegated  to 
them,  and  they  exercise  no  power  save  under  the 
restriction  of  the  laws.  Moreover,  though  the  exer- 
cise of  power  is  intrusted  to  kings  and  magistrates, 
yet  it  is  in  the  people  that  power  "  remains  funda- 
mentally" as  a  "natural  birthright." 

1  His  Tenure  of  Kings  and  Magistrates  (1649)  contains  the  most 
concise  formulation  of  his  views  on  this  subject.  The  same  ideas  per- 
vade the  Defensio  pro  Populo  Anglica.no  (1651}. 


THE  RIGHT  OF  DEPOSITION  243 


ions  and 
leposing 
is  argu- / 


From  these  premises  Milton  draws  the  obvious  and 
familiar  conclusions  as  to  the  justice  of  deposing 
rulers  for  violation  of  right  and  law.  His 
ment  is  illustrated  by  the  well-worn  instances  of 
deposition  and  tyrannicide  from  both  sacred  and 
profane  history.  But  the  stress  that  is  most  char- 
acteristic appears  in  the  insistence  that  the  doctrine 
propounded  is  the  only  one  that  is  plainly  reasonable 
and  compatible  with  the  dignity  of  man.1  The  royal- 
ist claim  that  the  election  of  a  king  expresses  really 
God's  choice  is  neatly  turned  against  its  makers  :  If 
the  people's  act  in  election  is  the  act  of  God  and  a 
just  ground  for  enthroning  the  monarch,  why  is  not 
the  people's  act  in  rejection  equally  the  act  of  God 
and  a  just  ground  for  deposing  ? 2  If  it  is  by  God  «- 
that  kings  reign,  it  is  by  God,  too,  that  peoples  as- 
sert their  liberty.  It  is  indeed  more  godlike  for  a 
people  to  depose  a  tyrant  than  for  a  tyrant  to  op- 
press an  innocent  people.3  All  this  is  plain  to  natural 
reason,  and  merely  receives  additional  confirmation 
by  the  Scriptures. 

That  ultimate  political  power  is  in  the  people,  is  ^ 
the    most   fundamental   principle,  then,  of   Milton's 
philosophy.    He  stands  for  popular  sovereignty,  what- 

1  To  think  that  the  people  were  created  for  the  king  rather  than 
he  for  them,  and  that  they  collectively  are  inferior  to  him  singly, 
"  were  a  kind  of  treason  against  the  dignity  of  mankind."  —  Tenure 
of  Kings  and  Magistrates. 

2  Ibid.,  in  Morley's  ed.,  p.  364. 

8  Tyrannum  sane  tollere  quam  constituere  divinius  est ;  plusque 
Dei  cernitur  in  populo  quoties  iniustum  abdicat  regem,  quam  in 
rege  qui  innocentem  opprimit  populum.  —  Defensio  Prima,  in  Works, 
Fletcher's  ed.,  p.  661 ;  also  p.  354. 


244  POLITICAL  THEORIES 

ever  the  form  of  government.  Liberty,  as  the  "  birth- 
right "  of  men  and  of  nations,  is  also  a  concept  which 
he  dwells  much  upon.  His  doctrines  under  this 
head  are  of  particular  interest,  since  they  embody 
in  most  attractive  form  the  substance  of  that  radical 
creed  which  is  so  incoherent  and  repulsive  in  the 
writings  of  other  extreme  republicans  of  the  day. 
The  liberty  for  which  he  contends  is  not  alone  the 
absence  of  monarchic  government,  but  the  assurance 
to  the  individual  of  a  wide  sphere  of  action  unre-i 
stricted  by  any  government.  Milton  is  the  earliest 
great  prophet  of  that  individualism  which  came  to 
be  almost  a  philosophic  fetich  in  the  nineteenth  cen- 
tury. It  is,  however,  the  foundation  and  not  the 
content  of  his  doctrine  that  suggests  the  recent  sys- 
tem of  laissez  faire  ;  for,  extreme  as  he  was  by  the 
standards  of  his  time,  the  sphere  which  he  would 
exempt  from  governmental  interference  is  very 
limited  as  compared  with  later  ideas. 

The  basis  of  his  demand  that  the  individual  be 
let  alone  is  the  dignity  that  belongs  to  a  being  en- 
dowed with  reason.  "  Reason,"  he  says,  "  is  but 
choosing;"1  and  where  opportunity  to  choose  is 
denied  by  the  prescription  of  government,  man- 
hood itself  is  stunted  and  destroyed.  Opportunity 
for  each  man  to  work  out  his  own  good  is  what 
government  must  aim  to  secure.  Laws  must  merely 
punish  crime ;  the  absence  of  laws  will  do  most  for 
the  positive  promotion  of  virtue.2  The  real  progress 

1  Areopagitica  (Morley),  p.  329. 

2  See   his    Defensio    Secunda,   with  the  translated    extracts   and 
analysis  in  Masson,  IV,  580  et  seq.,  esp.  611-612. 


MILTON   ON  LIBERTY  245 


of  the  race  requires  also  that  men  rise  superior  to 
custom  and  prescription,  whose  tyranny  is  as  depress- 
ing as  that  of  positive  law.  Reason,  cultivated  and 
informed  by  all  attainable  means,  shall  be  the  suffi- 
cient instrument  of  all  social  and  political  good,  and 
the  warrant  of  liberty. 

As  to  the  details  of  this  rational  liberty  which 
Milton  demands,  they  include,  first,  religious  tolera-  \  - 
tion.1  On  this  head  the  plea  of  Milton  is  that  of  / 
Roger  Williams,  with  the  emphasis,  however,  on  the 
argument  from  utility  rather  than  on  the  injunctions 
or  teachings  of  the  Scriptures.  Government  is  to 
keep  its  hands  off  entirely  from  the  regulation  of  in- 
tercourse and  communion  between  man  and  God.  In 
the  second  place,  he  demands  the  unrestricted  freedom  *- 
of  the  press.  The  immortal  Areopagitica  (1644) 
embodies  his  indignant  rebuke  of  a  censorship  and 
his  eloquent  plea  that,  unless  human  reason  is  a 
delusion  and  a  snare,  truth  will  always  prevail,  in 
a  fair  field,  over  error.  His  principle  carries  him, 
moreover,  far  beyond  the  mere  question  of  the  press. 
To  the  whole  system  of  governmental  supervision  and 
restriction  which  he  finds  sustained  by  Plato  and  his 
school,  Milton  opposes  the  demand  for  a  rational  free- 
dom. With  an  obvious  allusion  to  the  Calvinistic 
regime  so  dear  to  the  Scottish  and  English  Presbyte- 
rians, he  denounces  as  destructive  of  the  very  foun- 
dations of  virtue  the  attempt  to  enforce  a  rigid  and 
austere  code  in  diet,  dress  and  amusements.  He  pro- 
tests against  uniformity  in  conduct,  thought  and  ex- 

1  See  especially  his  Treatise  of  Civil  Power  in  Ecclesiastical  Causes. 


246  POLITICAL  THEORIES 

pression  as  not  only  unattainable,  but  wholly  undesir- 
able, and  on  the  basis  of  a  rational  and  but  slightly 
regulated  diversity  he  rears  a  magnificent  ideal  of 
both  individual  and  national  progress  and  prosperity. 

Liberty,  then,  was  the  first  and  controlling  pre- 
occupation of  Milton  in  his  political  philosophy.  As 
to  the  form  of  government  through  which  this  liberty 
should  be  guaranteed,  he  was  of  course  primarily  a 
republican.  Yet,  maintaining  that  ultimate  power 
was  in  any  case  in  the  people,  he  was  not  precluded 
from  supporting  any  form  of  organization  that  might 
be  most  expedient  for  exercising  such  authority  as 
was  delegated  by  the  people.  When  Cromwell  over- 
threw the  Commonwealth  and  became  king  in  all  but 
name,  Milton  was  willing  and  even  eager  to  support 
the  new  order,  on  the  ground  oi  its  greater  efficiency 
in  maintaining  true  liberty  as  he  conceived  it.1 

A  severe  test  of  Milton's  philosophy  came  when, 
after  Cromwell  had  failed  to  achieve  a  permanent 
reorganization  of  the  state,  the  question  of  the  suc- 
cession arose.  Against  the  tide  that  was  obviously 
running  with  irresistible  force  toward  the  restoration 
of  the  Stuarts,  Milton  stood  stiffly  by  his  original 
republicanism.  He  demanded2  "a  Free  Common- 
wealth, without  Single  Person  or  House  of  Lords," 
and  advocated  a  government  consisting  of  a  body  of 
representatives,  holding  by  permanent  tenure,3  and 

1  See  his  tribute  to  Cromwell  and  the  other  leaders  in  the  Defensio 
Secunda ;  also  Masson,  IV,  611  et  seq. 

2  In  his  Ready  and  Easy  Way  to  Establish  a  Free  Commonwealth, 
published  in  1660.     In  Morley's  ed.,  p.  423. 

8  This  is  the  tenure  he  prefers,  though  he  would  admit  the  retire- 


I 


MILTON'S  LATEST  DOCTRINE  247 

choosing  from  among  themselves  an  executive  council. 
His  preference  for  so  oligarchic  a  type  of  government 
seems  somewhat  strange.     It  is  to  be  explained,  how- 
ever, partly  by  the  fact  that  his  pamphlet  was  a  last 
desperate  protest  against  a  policy  which   he   knew 
was  sustained  by  a  great  majority  of  the  people  of 
England,  and  partly  also  by  the  sentiment  of  aristoc- 
racy which  underlay  all  of  Milton's  philosophy.     He  '. 
had  never  favoured  universal  suffrage  and  rule  of  the 
numerical  majority.      Liberty  for  all,  but  authority 
for  such  as  were  capable,  was  his  creed.     Like  the 
mightiest  intellects  of  all  time,  he  viewed  things  from 
the  standpoint  of  "  that  hapless  race  of  men  whose 
misfortune  it  is  to  have  understanding."       Hence  he\ 
denied   flatly,   in   the   Free    Commonwealth,   that    a  \ 
majority  which  did  not  value  liberty  should  prevail    \ 
over  a  minority  which  demanded  it.     "  They  who 
seek  nothing  but  their  own  just  liberty  have  always 
right  to  win  it  and  keep  it  whenever  they  have  power, 
be  the  voices  never  so  numerous  that  oppose  it." 2 

With  this, — the  revolutionist's  familiar  plea, — 
Milton  disappeared  from  the  field  of  formal  political 
philosophy,  and  narrowly  escaped  disappearing  from 
earth  altogether.3 

ment  of  one-third  of  the  members  annually.  For  the  differences 
between  the  two  editions  of  this  work  of  Milton's,  and  its  relation 
to  contemporary  politics,  see  Masson,  V,  677. 

1  Areoparjitica  (Morley),  p.  334. 

2C/.  Buchanan's  doctrine,  ante,  p.  60.  Milton  often  refers  to 
Buchanan,  and  clearly  was  much  influenced  by  him. 

8  His  name  was  among  those  proposed  for  exclusion  from  amnesty 
at  the  Restoration,  but  was  omitted  — no  one  knows  precisely  why  — 
from  the  bill  as  passed. 


248  POLITICAL  THEORIES 

6.    The  Theories  of  Harrington 

Less  radical  and  more  systematic  in  his  philosophy 
than  Milton,  but  at  the  same  time  republican  in  his 
leaning,  was  James  Harrington,  whose  ideas  attracted 
much  attention  amid  the  host  of  propositions  which 
were  submitted  to  the  public  during  the  transition 
from  Protectorate  to  restored  royalty.1  Harrington's 
standpoint  was  that  of  the  impartial  scientific  observer 
of  the  situation  in  England,  with  no  strong  personal 
bias  as  between  the  factions.2  His  method  in  politi- 
cal science  was  chiefly  that  of  history  and  observa- 
tion, and  in  contrast  to  the  a  priori  reasoning  of 
most  of  the  Commonwealth  party,  he  consistently 
followed  in  the  path  of  Machiavelli  and  Aristotle. 
For  these  two  philosophers  he  manifested  the  great- 
est admiration,3  though  he  was  by  no  means  servile 
in  adopting  their  conclusions. 

The  substance  of  Harrington's  philosophy  is  em- 
bodied in  the  preliminary  chapter  of  his  chief  work, 
The  Commonwealth  of  Oceana*  This  work  as  a 
whole  embodies  a  scheme  for  a  constitution  of  Great 
Britain,  to  be  instituted  by  Cromwell.  The  literary 
apparatus  of  a  Utopia  is  employed  in  presenting  the 

1  Masson,  Milton,  V,  481  et  seq. 

2  He  was  on  intimate  terms  personally  with  Charles  I,  during  his 
captivity. 

8  Machiavelli  is  designated  as  "  the  only  politician  of  later  ages." 
That  Bodin  receives  no  recognition  is  due  to  the  Frenchman's  strong 
monarchic  leanings.  Hobbes  is  the  object  of  many  severe  attacks  by 
Harrington,  on  the  score  of  both  method  and  conclusions. 

4  Published  first  in  1656.  I  have  used  the  handy  edition  of  Henry 
Morley,  London,  1887.  Also  in  Harrington's  Works  (1771). 


FUNDAMENTAL  PRINCIPLES  249 

project,  but  the  fanciful  nomenclature  and  imaginary 
procedure  do  not  seriously  obscure  the  real  substance 
of  the  matter.  The  general  principles  of  politics, 
with  which  the  constitutional  project  is  prefaced, 
Harrington  bases  first  upon  the  idea  that  government 
must  be  either  "  the  empire  of  laws  and  not  of  men  " 
or  "  the  empire  of  men  and  not  of  laws."  These  two 
conceptions  he  regards  as  characteristic  respectively 
of  ancient  and  of  modern  philosophy,  represented 
typically  by  Aristotle  and  Hobbes.  The  distinction 
between  the  two  conceptions  of  government  lies 
ultimately  in  the  fact  that  in  one  the  general  public 
interest,  and  in  the  other  some  particular  private 
interest,  is  assumed  to  be  the  end  of  the  state.  Adopt- 
ing the  idea  of  the  ancients  as  the  sound  one,  Harring- 
ton proceeds  to  investigate  the  principles  which  must 
underlie  a  government  aiming  at  the  common  welfare. 
Here  again  the  consideration  is  twofold  —  first  as  to 
the  material  conditions,  and  second  as  to  the  psycho- 
logical influences,  which  are  involved  in  the  working 
of  political  institutions.  Furthermore,  governments 
are  distinguished  into  two  classes  according  as  they 
are  domestic,  or  national,  and  foreign,  or  provincial. 
That  is  to  say,  the  principles  applicable  to  the  self- 
government  of  a  nation  are  not  the  same  as  those 
which  apply  to  the  government  of  one  people  by 
another.  And  finally,  stability  or  permanence  is 
assumed  to  be  the  criterion  of  what  is  desirable  in 
government, : —  an  assumption  which  is  held  to  be 
abundantly  justified,  not  only  by  the  doctrines 
of  Aristotle  and  the  other  ancients,  but  also  by 


250  POLITICAL  THEORIES 

the  conditions  in  England  amid  which  Harrington 
writes. 

For  national  governments,  then,  the  prerequisite 
*  of  stability  is,  according  to  Harrington,  that  supreme 
authority  should  rest  with  those  who  own  most  of 
the  property  in  the  community.  In  general  this  will 
mean  that  the  government  must  be  in  the  hands  of 
the  land-owning  class,  save  in  commercial  city-states 
where  other  forms  of  wealth  are  so  much  more  impor- 
tant than  land.  This  economic  basis  of  government 
is  demonstrated  with  great  skill  and  ingenuity  on  both 
logical  and  historical  grounds.  Absolute  monarchy  is 
shown  to  be  "  natural "  only  where  the  land  is  all  or 
mostly  in  the  hands  of  a  single  person ;  "  mixed/'  or 
limited,  monarchy,  where  it  is  in  the  hands  of  a  few ; 
and  commonwealth,  where  it  is  widely  distributed 
among  the  people.  The  maintenance  of  government  in 
the  hands  of  one,  few,  or  many  by  violence,  regardless 
of  the  relation  to  property,  is  the  essence  of  tyranny, 
oligarchy  and  anarchy  respectively.1 

For  provincial  government  the  "balance  of  do- 
minion/' as  Harrington  calls  this  relation  between 
authority  and  property,  has  no  significance.  The 
stability  of  control  over  a  foreign  people,  or  province, 
depends  exclusively  upon  some  inherent  advantage 
possessed  by  the  ruling  power  —  whether  in  numbers, 
wealth,  position  or  otherwise.  Any  application  of 
the  principle  of  the  balance  of  dominion  would  at 

1  Harrington's  interpretation  of  English  history  turns  upon  his 
view  that  the  breaking  up  of  the  great  estates  of  the  nobility  and  the 
monasteries  by  the  first  Tudors  so  distributed  the  land  as  to  make 
either  monarchy  or  aristocracy  impossible  thereafter. 


HARRINGTON'S    OCEANA  251 

once  convert  the  provincial  into  a  national  system 
and  would  destroy  the  existing  order.1 

Turning  to  the  psychological  influences  which,  s 
together  with  the  economic  principle  already  adduced,  *- 
determine  the  constitution  of  government,  Harrington 
premises  that  the  commonwealth  corresponds  most 
closely  to  the  rational  nature  of  man,  since  it  affords 
play  to  the  interests  of  all.  But  how  to  adjust  the 
interests  of  all,  conflicting  as  they  do,  is  the  supreme 
problem  of  political  reasoning.  Harrington's  solu- 
tion is  ingenious  and  striking.  Common  observa- 
tion, he  argues,  reveals  the  principles  of  governmental 
organization.  Given  any  group  of  men  debating  a 
matter  of  common  concern,  —  and  a  commonwealth 
is  merely  such  a  group,  —  two  parts  are  at  once  dis- 
cernible :  one  smaller  body,  say  one-third  of  the 
whole  number,  who  propound  ideas,  and  a  larger 
body,  including  the  other  two-thirds,  whose  partici- 
pation consists  in  passing  judgment  upon  the  pro- 
posals. Here  is  the  clue  to  the  structure  of  the 
government.  There  must  be,  first,  a  senate,  em-  . 
bracing  "that  natural  aristocracy  diffused  by  God 
throughout  the  whole  body  of  mankind/'  whose  func- 
tion shall  be  to  originate  policies  and  laws ;  second,  a 
council,  consisting  of  the  mass  of  the  people  or  their  , 
representatives,  with  the  function  of  passing  upon  the 
propositions  of  the  senate;  and  third,  a  magistracy, 
to  carry  into  effect  the  resolutions  adopted  by  the 
assemblies.  In  these  three  organs  is  the  essential 

1  Except  in  absolute  monarchy,  where  the  ruler  is  the  supreme 
land-owner  in  both  the  national  territory  and  the  provinces. 


252  POLITICAL  THEORIES 

structure  of  a  commonwealth  government ;  and  Har- 
rington appeals  with  confidence  in  support  of  his 
contention  not  only  to  Machiavelli  and  the  ancient 
philosophers,  but  also  to  the  actual  experience  of 
popular  states  in  all  periods  of  history. 

For  the  assured  permanence  of  a  commonwealth, 
that  conforms  in  its  foundation  and  structure  to  the 
economic  and  rational  principles  that  he  has  laid 
down,  Harrington  declares  two  institutions  to  be 
indispensable,  an  "  equal  Agrarian  "  and  "  equal  Ko- 
tation."  By  the  former  he  means  an  immutable  law 
preventing  the  concentration  of  landed  property  in 
the  hands  of  one  or  few ; l  by  the  latter,  such  a  law 
of  elections  for  the  magistracies  that  all  qualified  per- 
sons shall  have  an  equal  opportunity  to  serve  their 
fellow-citizens.  In  connection  with  this  latter  topic 
Harrington  expatiates  upon  the  peculiar  importance 
of  the  secret  ballot,  which  he  conceives  to  be  of  the 
very  essence  of  just  popular  government.  The  de- 
vices through  which  he  seeks  to  insure  absolute  free- 
dom of  the  voter  from  all  constraint  upon  his  choice 
are  not  the  least  striking  of  the  ideas  which  bring 
Harrington  in  very  close  touch  with  the  politics  of 
the  nineteenth  century.  The  source  of  these  ideas, 
however,  is  his  study  of  the  commonwealths  of  classi- 
cal antiquity,  as  is  proclaimed  by  both  implication 
and  express  avowal  at  every  stage  in  his  philosophy.2 

1  For  Great  Britain  he  proposes  that  the  limit  of  individual  owner- 
ship of  land  should  be  set  at  that  amount  which  produces  a  revenue  of 
£2000  per  annum.  Oceana  (Morley),  p.  104. 

a  Venice  also  strongly  impressed  Harrington  with  the  excellence  of 
its  constitution  and  was  frequently  referred  to  by  him.  He  regarded 


MILTON  AND   HARRINGTON  253 

Harrington's  system  of  doctrine  is  in  many  re- 
spects a  perfect  complement  to  that  of  Milton,  so 
that  the  two  combined  constitute  a  complete  body 
of  republican  theory.  Milton's  preoccupation  is  pri- 
marily with  the  individual  man  and  the  freedom  that 
belongs  to  him  by  nature ;  Harrington  is  concerned 
more  with  the  government  and  the  determination  of 
its  scope  and  operation  by  political  art.  To  Milton 
monarchic  government  among  enlightened  people 
appears  morally  inconceivable ;  to  Harrington  it  is 
economically  impossible.  The  one  thinker  is  at  his 
best  in  the  destruction  of  oppressive  government ;  the 
other,  in  the  construction  of  beneficent  government. 
Both,  though  maintaining  popular  sovereignty,  are 
essentially  aristocratic  in  their  philosophy.  Milton 
seeks  primarily  to  shape  government  so  that  the 
intellectually  and  spiritually  preeminent  shall  be  let 
alone ;  Harrington,  more  optimistic,  believes  that  the 
natural  aristocracy  will  inevitably  rule,  and  models 
his  government  so  as  to  facilitate  this  result.  Both 
thinkers  have  greatly  influenced  the  politics  of  later 
generations.  In  this  respect,  however,  the  relative 
importance  of  the  two  men  has  not  been  in  reality 
what  it  has  appeared  to  be.  For  Milton,  justly 
glorified  as  one  of  the  great  creative  literary  gen- 
iuses of  all  time,  has  been  widely  read  and  studied ; 
while  Harrington,  hampered  by  the  unalluring  repu- 
tation of  a  visionary  and  faddist,  has  been  preserved 
from  oblivion  only  by  the  appreciation  of  a  small 

it  as  the  best  example  of  what  he  called  the  "  equal  commonwealth," 
namely,  that  in  which  dissension  between  social  classes  is  best 
guarded  against. 


254  POLITICAL  THEORIES 

circle  of  readers.  Yet  to  the  few  who  have  got  to 
the  essence  of  Harrington's  thought  it  has  been  very 
rich  in  practical  suggestions ;  and  so  it  happens  that 
the  actual  institutions  in  which  the  commonwealth 
idea  has  been  realized  in  England  and  America  pre- 
sent a  remarkably  large  aggregate  of  resemblances  to 
the  establishments  of  Oceana.1 

7.   Anti-RepuUican  Doctrine:  Filmer 

Having  now  reviewed  the  most  conspicuous  theo- 
ries that  prevailed  among  the  adversaries  of  the  old 
order  in  England,  it  remains  to  notice  the  ideas  which 
were  defended  by  the  royalist  philosophers  and  which 
enjoyed  a  period  of  apparent  triumph  in  the  Kestora- 
tion.  The  bulk  of  the  arguments  by  which  the  cause 
of  the  king  was  sustained  need  not  be  particularly 
examined;  for  they  merely  repeated  in  substance 
what  had  been  formulated  by  James  I  in  his  True  Law 
of  Free  Monarchies.'2'  Unassailable  and  sanctified  su- 
premacy through  God's  immediate  ordering  was  at- 
tributed to  the  hereditary  monarch,  especially  by  the 
dignitaries  of  the  Anglican  establishment,  and  pas- 
sive obedience  was  declared  to  be  the  whole  duty  of 

1  Many  illustrations  on  this  point  may  be  found  in  an  article  by 
Professor  Theodore  Dwight  in  Political  Science  Quarterly,  II,  1.  But 
the  article  must  be  taken  with  considerable  allowance;  for  in  his 
enthusiasm  for  Harrington  the  writer  has  attributed  to  him  the  origi- 
nation of  a  number  of  ideas  which  he  w.as  by  no  means  the  first  to 
propound  ;  e.g.  that  government  rests  on  the  consent  of  the  governed, 
and  that  a  government  should  be  limited  by  a  written  constitu- 
tion. That  Harrington's  theories  played  a  part  in  the  early  political 
development  of  the  United  States  may  be  inferred  from  the  frequent 
references  made  to  them  by  leading  American  statesmen,  notably 
John  Adams  and  Daniel  Webster.  2  Supra,  p.  215. 


FILMER  AND  HOBBES  255 

subjects.1  The  supports  for  these  positions  were 
chiefly  the  familiar  texts  from  the  Bible  and  such  in- 
terpretations of  classic  history  and  literature  as  the 
erudition  and  ingenuity  of  scholars  like  Salmasius2 
could  devise.  Royalists  of  a  juristic  bent  stood 
firmly,  of  course,  on  the  constitutional  doctrine  of  the 
king's  prerogative,  and  made  their  principal  appeal  to 
the  law  of  England.  But  against  the  doctrines  of 
the  extreme  republicans,  who  went  back  beyond  the 
English  law  to  the  law  of  nature  for  the  basis  of 
popular  sovereignty,  it  was  necessary  for  the  advocates 
of  royalty  to  present  a  theory  of  corresponding  char- 
acter. This  necessity  was  at  bottom  responsible  for 
the  philosophy  of  two  remarkable  thinkers,  Sir  Robert 
Filmer  and  Thomas  Hobbes. 

Filmer  has  received  scant  justice  from  historians 
of  political  theory.3  His  best-known  work,  the  Pa- 
triarcha,  is  generally  thought  of  merely  as  the  text 
for  destructive  criticism  by  Sydney  and  Locke.  But 
Filmer 's  logic  is  in  most  respects  quite  equal  to 
that  of  his  critics,  and  his  clearness  of  expression  suf- 
fers not  at  all  in  comparison.  The  Patriarcha  is 
weak  only  so  far  as  it  presents  a  constructive  theory ; 
in  his  assaults  on  his  opponents  Filmer  manifests  a 
most  acute  and  penetrating  mind.  Some  of  his  best 
work  on  this  side  is  to  be  found  in  the  writings 4  that 

1  Cf.  Prothero,  Statutes  and  Constitutional  Documents,  p.  435. 

2  His  Defensio  Regia  pro  Carolo  I  (1649),  which  evoked  Milton's 
reply,  embodied  a  systematic  exposition  of  the  divine-right  theory. 

8  A  very  fair  and  suggestive  appreciation  of  Filmer  is  given  by 
Figgis,  The  Divine  Right  of  Kings,  pp.  34S~  et  seq.  I  H*$ 

4  See  especially  his  Observations  concerning  the  Originall  of  Govern- 
ment (1652),  dealing  with  Hobbes,  Milton,  Grotius  and  Hunton. 


256  POLITICAL  THEORIES 

were  published  before  his  death  in  1653  ;  Patriarcha 
appeared  only  in  1680,  when  the  controversies  that 
led  to  the  Whig  Revolution  were  beginning. 

Filmer's  search  after  a  basis  for  royal  power  leads 
him  to  a  very  clear  conception  of  sovereignty,  as 
Bodin  had  conceived  it  and  as  Hobbes  was  shaping 
the  idea  contemporaneously  with  Fihner.  The  ques- 
tion is :  Where  in  any  political  body  is  the  final  and 
unquestionable  authority  to  prescribe  rules  for  the 
conduct  of  individuals  ?  Or,  to  carry  the  question 
one  stage  farther  in  generality  :  On  what  universal, 
or  "  natural,"  principle  can  authority  be  exercised  by 
any  human  being  over  any  other  ?  To  Filmer  the 
one  answer  to  these  questions  that  is  totally  desti- 
tute of  ra.tinrigj__pr  historical  validity  is  that  which 
ascribes  authority  to  "the  people,"  and  bases  this 
authority  on  the  natural  equality  of  men.  It  is  the 
mischievous  notion  that  men  are  by  nature  free  and 
equal  that  has  led,  he  thinks,  to  the  distraction  of  all 
philosophy.  This  doctrine  has  not  only  sustained 
the  deadly  errors  of  heathen  and  papists,  but  has 
vitiated  the  otherwise  excellent  systems  of  Hobbes 
and  Grotius.1  All  the  clumsy  paraphernalia  of  the 
social  contract  could  be  avoided  by  the  former  if  he 
omitted  his  assumption  of  original  equality,  and  the 
latter' s  contradictions  and  confusion  in  dealing  with 
the  relation  of  ius  naturale  to  ius  gentium  have  no 
other  source  than  the  foolish  admission  that  authority 
over  men  and  things  rests  upon  human  consent.2 

1  See  Observations,  on  these  two  writers. 

2  Ibid.    Filmer's  analysis  of  Grotius  is  especially  acute  and  effec- 
tive. 


FILMER  ON  SOVEREIGNTY  257 

The  only  logical  conclusion  from  the  premise  of 
natural  equality  is,  Filmer  holds,  helpless  anarchy.  *~ 
If  every  individual  must  consent  to  the  establishment 
of  government,  government  is  forever  impossible. 
Hence,  he  says,  the  advocates  of  popular  sovereignty 
never  succeed  in  defining  who  are  meant  by  "the 
people."  Milton's  assertion  that  it  means  the  "bet- 
ter part/'  or  the  "  sounder  part,"  of  the  population  is 
followed  out  mercilessly  to  its  practical  absurdity. 
There  is  shown  to  be  no  basis  for  majority  rule  or  the 
rule  of  representatives  when  the  initial  principle  is 
the  equality  of  all.  Nor,  on  that  principle,  can  war- 
rant be  found  for  any  political  system  less  compre- 
hensive than  that  of  the  whole  earth,  consented  to 
by  every  individual  —  man,  woman  and  child  —  of 
every  generation  of  the  total  population.  Any  lesser 
system,  established  by  the  initiative  or  maintained 
by  the  power  of  any  limited  number  of  persons,  must 
inevitably  involve  some  act  of  authority  through 
which  the  primary  principle  of  perfect  equality  is 
squarely  contradicted. 

In  addition  to  his  vigorous  attack  on  the  idea  of 
popular  sovereignty,  Filmer  makes  an  equally  strong 
assault  on  the  idea  upheld  by  the  revolutionists  that  the  ^ 
power  of  a  monarch  is  inherently  more  despotic  than 
that  of  any  other  depositary  of  supreme  authority.1 
Filmer  stands  firmly  on  Bodin's  dogma,  that  an  arbi- 
trary and   irresponsible   power,  legibus  soluta,  is  the  ^ 
essential   characteristic   of    every    government,   mo- 
narchic or  polyarchic.     Supreme  legislative  power  is 

1  For  this  see  especially  his  Observations,  on  Mr.  Hunton. 
VOL.  n.  —  s 


258  POLITICAL  THEORIES 

arbitrary,  wherever  it  is  located,  whether  in  king  or 
in  people.  "  If  it  be  tyranny  for  one  man  to  govern 
arbitrarily,  why  should  it  not  be  far  greater  tyranny 
for  a  multitude  of  men  to  govern  without  being  ac- 
countable or  bound  by  laws  ?  "  l  And  as  for  the  con- 
tention that  law  rather  than  man  should  be  supreme, 
and  that  disregard  of  law  is  tyranny,  Filmer  retorts, 
cleverly  if  somewhat  sophistically,  that  on  such  a 
principle  courts  of  equity  and  all  exercise  of  the  par- 
doning power  are  tyrannic.2  Here,  as  elsewhere,  he 
shifts  his  ground  skilfully  from  general  political  phi- 
losophy to  purely  English  conditions,  in  order  to  con- 
found the  Parliamentarian  jurists  who  hold  to  the 
Common  law  as  the  quintessence  of  all  law. 

Filmer  thus  makes  a  good  case  for  his  conviction 
that  the  ultimate  principle  of  political  authority  is 

v  not  that  of  original  equality  and  a  contract  for  the 
establishment  of  government.  His  doctrine  as  to 
what  the  principle  is,  appeals  less  strongly  to  the 
modern  mind.  Concisely  stated,  the  doctrine  is  this : 
In  God's  scheme  of  creation  all  earthly  dominion, 
or  supreme  power  of  controlling  persons  and  things, 
is  of  a  single  kind ;  there  is  no  distinction  between 

•-  political  and  economic 8  authority.  This  dominion  as 
a  whole  was  bestowed  by  God  on  Adam  at  the  crea- 

1  Observations,  on  Milton,  p.  16. 

2  "  There  are  far  more  suits  for  relief  against  laws  than  there  be 
for  the  observation  of  the  laws :  there  can  be  no  such  tyranny  in  the 
world  as  the  law,  if  there  were  no  equity  to  abate  the  rigour  of  it.     It 
is  the  chief  happiness  of  a  kingdom  and  their  chief  liberty,  not  to  be 
governed  by  the  laws  only."  —  Ibid.,  p.  21. 

8  That  is,  economic  in  the  Aristotelian  sense  —  pertaining  to  the 
household. 


PATRIARCHAL   SOVEREIGNTY  259 

tion,  and  was  transmitted  intact  to  Adam's  posterity. 
The  patriarchal  authority  exercised  by  Adam  over  : 
his  family  when  that  family  constituted  the  whole  ; 
of  the  human  race  is  the  only  species  of  authority 
that  has  the  sanction  of  God's  immediate  bestowal. 
It  prevailed  throughout  all  the  earlier  life  of  the  race 
and  was  the  basis  on  which  the  earth  was  partitioned 
among  the  sons  of  Noah  after  the  Deluge.  All  early 
kings  were  merely  fathers  of  families  and  possessed 
exclusive  and  unlimited  power  over  all  persons  and 
property  pertaining  to  the  families.  In  later  ages  the 
paternal  relation  between  king  and  subjects  disap- 
peared, but  that  fact  involved  no  change  in  the 
character  of  the  power  possessed  by  the  ruler.  The 
unqualified  dominion  that  was  exercised  by  the 
ancient  patriarchs  is  the  type  of  the  "  natural "  power  *- 
of  kings  ;  it  is  the  only  species  of  authority  that  has 
a  basis  in  God's  command,  in  a  universal  physical 
fact,  that  of  paternity,  and  in  the  authentic  history 
of  mankind.1 

To  sustain  this  theory  Filmer  was  obliged  to  in- 
terpret the  history  of  both  Israelites  and  other  races 
in  a  way  that  carries  no  conviction  now,  and  to 
repudiate  the  distinction  so  incisively  made  by  Aris- 
totle, for  whom  he  showed  in  general  the  utmost 
respect,  between  political  and  economic  authority. 

1  Filmer  concludes  from  profane  as  well  as  from  sacred  history 
that  all  early  kings  were  patriarchs.  The  "heaps  of  kings"  in 
limited  territory,  such  as  the  seventy  that  went  from  Greece  to  the 
Trojan  War,  the  many  that  Caesar  found  in  Gaul,  and  the  four  that 
he  found  in  the  English  county  of  Kent,  indicate  that  kingdoms  were 
originally  only  families.  —  Patriarcha,  I,  7. 


260  POLITICAL  THEORIES 

The  patriarchal  theory  involved  also  a  serious  diffi- 
culty in  connection  with  the  question  of  the  succession  ; 
for  the  hereditary  transmission  of  power  by  primo- 
geniture was  regarded  as  quite  essential  to  the  royal 
cause.  Filmer  was  obliged  to  assert  that  the  son 
"  was  comprehended  sufficiently  in  the  person  of 
the  father,"  1  and  that  "  if  Adam  himself  were  still 
living  and  now  ready  to  die,  it  is  certain  that  there 
is  one  man,  and  but  one  in  the  world,  who  is  next 
heir,  although  the  knowledge  who  should  be  that  one 
man  be  quite  lost."  2  But  he  nowhere  made  it  very 
clear  why  the  first  son,  more  than  the  second  or  the 
third,  should  be  the  "  next  heir,"  considering  that  all 
alike  are  "  comprehended  "  in  the  father.  Yet  Fil- 
mer's  logical  hiatus  here  is  no  more  conspicuous  than 
that  of  many  of  his  adversaries  when,  premising  the 
equality  of  all  men,  they  assign  to  a  majority  the 
right  to  govern. 

That  the  Patriarcha  appealed  strongly  to  the  men 
of  the  seventeenth  century  seems  demonstrated  by 
the  elaborate  pains  taken  by  Sydney  and  Locke  in 
refuting  it.  Locke's  first  Treatise  of  Government, 
which  is  devoted  to  this  purpose,  is  half  as  long 
again  as  the  work  refuted.  Filmer' s  theory  of  the 
divine  right  of  kings  was  indeed  far  better  adapted 
to  make  an  impression  when  it  appeared  than  such 
earlier  versions  of  the  theory  as  that  of  James  I.3 

1  Patriarcha,  I,  7. 

2  Ibid.,   I,   9.     Rousseau  declines  to   discuss  this  theory  on  the 
ground  that  he  might  prejudice  his  own  interest  in  case  he  himself 
should  turn  out  to  be  the  lost  heir.     Contrat  Social,  I,  ii,  end. 

8  Supra,  p.  215. 


FILMER   ON  EQUALITY  261 

For  Filmer  was  in  no  small  degree  rationalistic  in 
his  argument,  discarding  the  haphazard  citation  of 
Biblical  texts  that  had  constituted  the  mainstay  of 
his  predecessors.1  The  Patriarcha  avowedly  sought 
a  "  natural  "  basis  for  royalty,  and  found  it  in  a  prin- 
ciple which  was  sustained  by  reasoning  about  the 
actual  development  of  human  institutions  rather  than  ' 
by  the  blind  acceptance  of  inspired  texts.  It  was 
doubtless  this  method  of  sustaining  his  thesis  that 
drew  especial  attention  to  Filmer.  But  his  method, 
though  new  in  defence  of  royalty,  had  in  it  nothing 
of  ultimate  effectiveness  for  the  seventeenth  century. 
The  dogma  which  for  that  period  was  alone  "natural" 
was  the  freedom  and  equality  of  all  men.  To  reject 
this  dogma,  as  Filmer  rejected  it,  was  to  put  oneself 
out  of  the  current  in  which  all  philosophy  was  run- 
ning. That  the  dogma  had  hitherto  been  employed 
exclusively  to  sustain  the  anti-monarchic  cause,  was 
no  real  reason  why  this  should  continue  to  be  the 
case.  It  was  for  Hobbes,  a  royalist  of  far  deeper 
insight  than  Filmer,  to  detect  this  fact,  and  boldly 
and  with  astonishing  skill  to  adapt  the  dogma  of 
natural  equality  and  all  the  paraphernalia  of  the 
social  contract  to  the  support  of  monarchic  absolut- 
ism. But  Hobbes  bulks  so  large  that  it  is  necessary 
to  examine  his  philosophy  at  length  and  irrespective 
of  its  peculiar  relation  to  English  history. 

1  Figgis,  Divine  Right  of  Kings,  pp.  146-147. 


262  POLITICAL  THEORIES 


SELECT  REFERENCES 

DWIGHT,  "  James  Harrington,"  in  Political  Science  Quarterly, 
Vol.  II,  p.  1.  FILMER,  Observations  concerning  the  Originall 
of  Government;  also  Patriarcha,  or  the  Natural  Power  of 
Kings.  FIRTH,  Preface  to  the  Clarke  Papers.  GARDINER, 
History  of  England,  1603-1642,  chaps.  Ixiii,  Ixxxiii,  Ixxxvi; 
History  of  the  Great  Civil  War,  chaps,  xiv,  xxii,  xlviii,  Hi, 
Iv,  Iviii;  Constitutional  Documents  of  the  Puritan  Kevolution; 
Commonwealth  and  Protectorate,  chaps,  ii,  vii.  HARRINGTON, 
Oceana.  LILBURNE,  Vox  Plebis.  MASSON,  Life  of  Milton,  II, 
531-606;  III,  98-159;  IV,  65-77,  252-271;  V,  644-655,  677- 
689.  MILTON,  Prose  Works,  ed.  by  Fletcher;  also  English 
Prose  Works,  ed.  by  Henry  Morley.  OSGOOD,  "Political 
Ideas  of  the  Puritans,"  in  Political  Science  Quarterly,  Vol.  VI, 
pp.  1  and  201.  WILLIAMS,  KOGER,  The  Bloudy  Tenent  of  Per- 
secution, and  The  Bloudy  Tenent  yet  more  Bloudy. 


CHAPTER  VIII 

THOMAS   HOBBES 

1.    Character  and  Method  of  his  Philosophy 

IN  taking  up  the  political  theories  of  Hobbes  we 
leave  the  field  of  controversial  debate  on  concrete 
issues  that  has  largely  occupied  our  attention  through- 
out the  last  chapter  and  pass  to  the  domain  of  ab- 
stract and  systematic  philosophy.  Not  that  Hobbes, 
writing  as  he  did  in  the  midst  of  the  Puritan  Revolu- 
tion, was  unaffected  in  his  thought  by  that  convul- 
sion ;  on  the  contrary,  the  support  of  the  royal 
cause  was  a  definite  purpose  of  his  work.  But  he 
was  by  nature  a  closet  philosopher  rather  than  a 
practical  politician,  and  his  system,  when  completed, 
was  so  comprehensive  an  exposition  of  general  politi- 
cal science  that  his  personal  preference  for  absolute 
monarchy  appeared  as  merely  an  insignificant  episode. 

The  general  conditions  amid  which  Hobbes  pro- 
duced his  great  political  treatises  present  a  close 
parallel  to  those  that  surrounded  Bodin  sixty  years 
earlier.1  Hobbes's  De  Owe  appeared  in  1647  and 
the  Leviathan  in  1651.  In  those  years  the  English 
Puritans  were  declaiming  against  tyranny  in  the 
same  terms  that  the  Huguenots  had  used  before 

1  Supra,  pp.  41-42,  81. 
263 


264  POLITICAL   THEORIES 

them,  and  were  carrying  into  formal  application  the 
doctrines  of  resistance  and  tyrannicide;  while  the 
literature  of  the  time  embodied  no  less  of  passion 
and  no  more  of  clear-cut  and  generally  accepted 
doctrine  than  prevailed  in  France  at  the  time  of 
St.  Bartholomew's.  Hobbes  published  his  political 
treatises  while  in  exile.  The  meeting  of  the  Long 
Parliament  had  unduly  strained  his  none-too-steady 
nerves,  and  he  had  gone  immediately  to  France,  "  the 
first  of  all  that  fled,"  as  he  himself  candidly  con- 
fesses.1 In  Paris  he  lived  in  close  relations  with 
the  royalist  colony  and  for  a  time  acted  as  instructor 
to  the  future  king  Charles  II.  Like  Bodin,  thus,  he 
was  identified  with  the  royalist  party  in  a  time  of 
civil  dissension;  and  like  Bodin  he  aimed  in  his 
political  philosophy  to  sustain  the  royal  cause  prima- 
rily through  the  attainment  of  exactness  in  the  con- 
ceptions of  state  and  sovereignty.2 

But  with  environment  and  purpose  the  resemblance 
of  Hobbes's  philosophy  to  Bodin's  ceases.  In  method 
the  Englishman  departed  entirely  from  his  prede- 
cessor. Hobbes  was  in  his  early  life  a  friend  and 
admirer  of  Bacon,  by  whom  he  was  doubtless  in- 
spired with  interest  in  the  progress  of  physical  science. 
Later  he  became  profoundly  absorbed  in  the  dis- 
coveries and  discussions  in  physics  and  mathematics 
which  centred  about  the  work  of  Descartes.  For 
any  important  contributions  to  these  sciences,  Hobbes 
was,  despite  his  unwavering  belief  to  the  contrary, 

1  Works,  Molesworth's  ed.,  IV,  414. 

2  Cf.  «  Introductory  Letter  to  the  Duke  of  Newcastle,"  in  Works, 
Vol.  IV. 


THE   METHOD   OF   HOBBES  265 

wholly  unfitted ; 1  but  his  study  of  them  determined 
the  form  and  method  of  his  philosophy  in  fields  where 
he  was  destined  to  preeminence.  The  basis  of  all  his 
thought  in  ethics  and  politics  was  materialistic,  and 
for  its  development  no  method  appealed  to  him  but 
that  of  Euclid.  Definition  and  deduction  summed 
up  his  demonstrative  process.  Geometry  he  con- 
sidered to  be  the  only  true  science,2  and  only  the 
exactness  of  its  method  and  conclusions  could  satisfy 
his  mind.  Hence  the  teachings  of  history  and  of 
authority  have  no  place  in  his  system.  He  but  rarely 
supports  an  argument  by  historical  references,  and  he 
has  only  disdain  for  any  one  "  who  takes  up  conclu- 
sions on  the  trust  of  authors  and  doth  not  fetch  them 
from  the  first  items  in  every  reckoning,  which  are  the 
significations  of  names  settled  by  definitions." 3  The 
Leviathan,  which  for  our  purpose  may  be  considered 
the  substance  of  his  philosophy,  consists  essentially 
of,  first,  a  series  of  definitions  in  which  all  the  con- 
cepts of  science  are  formulated  and  distinguished  with 
extraordinary  acuteness,  and,  second,  a  chain  of  de- 
duction so  close  and  cogent  as  to  bear  the  reader 
helplessly  to  the  writer's  conclusions.  Hobbes  ap- 
peals almost  exclusively  to  the  intellectual  conviction 
that  his  reasoning  about  human  nature  may  produce 
in  those  who  follow  it ;  he  seeks  little  aid  from  the 

1  For  his  persistent  contention  that  he  had  "  squared  the  circle," 
and  his  long  dispute  over  this  with  Wallis,  see  Robertson,  Hobbes. 

2  "  Geometry,  which  is  the  only  science  that  it  hath  hitherto  pleased 
God  to  bestow  on  mankind."  —  Leviathan,  chap.  iv. 

8  Ibid.,  chap,  v,  et  passim.  Hobbes  had  great  confidence  in  re- 
flection as  contrasted  with  reading.  He  said  that  if  he  spent  as 
much  time  as  others  did  in  reading,  he  would  be  as  ignorant  as  they. 


266  POLITICAL  THEORIES 

concrete  facts  of  men's  experience  and  none  at  all 
from  the  judgments  of  other  philosophers. 
/  ,  The  foundation  of  his  political  science  is  carefully 
//laid  in  his  theory  of  knowledge  and  of  happiness. 
Here  his  materialism  is  obvious  at  the  outsets  All 
human  knowledge  is  reached,  he  holds,  through  the 
senses,  and  every  idea  is  the  result  of  an  effect 
produced  upon  an  organ  of  sense  by  the  motion  of 
an  external  object.  "  Body,"  or  matter,  and  motion 
are  the  ultimate  phenomena,  and  mental  and  moral 
concepts  are  derived  from  them.  All  human  "pas- 
sions," or  emotions,  are  deducible  from  the  antithesis 
of  appetite  and  aversion ;  and  these  primary  species 
are,  according  to  Hobbes,  but  the  slight  beginnings  in 
man  of  motion  to  or  from  an  object  that  stimulates 
the  motion.1  If  the  object  stimulates  appetite,  or 
motion  toward  itself,  it  is  good ;  if  motion  from  itself, 
it  is  bad  :  and  there  is  no  distinction  of  good  and  evil 
other  than  this.2  From  the  consciousness  of  appetite 
and  aversion,  thus  explained,  arise  all  the  emotions  — 
joy  and  grief,  hope  and  despair,  fear,  courage,  anger, 
etc.  All  have  reference  to  the  past,  the  existing  or 
the  expected  attainment  of  an  object  of  appetite  or 
escape  from  an  object  of  aversion.  Happiness,  then,i 
or  "felicity,"  as  Hobbes  calls  it,  consists  in  continual \ 
success  in  getting  what  one  from  time  to  tune  desires. } 

1  Leviathan,  chap.  vi.     This  is  an  extraordinarily  effective  chapter, 
and  shows  Hobbes's  method  at  its  best. 

2  "  These  words  [good  and  bad]  are  ever  used  with  relation  to  the 
person  that  useth  them ;  there  being  nothing  simply  and  absolutely 
so,  nor  any  common  rule  of  good  and  evil  to  be  taken  from  the  nature 
of  the  objects  themselves."  —  Ibid.,  chap,  vi  (Morley's  ed.,  p.  32). 


HOBBES  ON  HAPPINESS  267 

For  there  is  no  such  thing  in  life  as  perpetual  tran- 
quillity ;  life  "  can  never  be  without  desire  nor  with- 
out fear,  no  more  than  without  sense."  Happiness, 
therefore,  is  "  a  continual  progress  of  the  desire  from 
one  object  to  another,  the  attaining  of  the  former 
being  still  but  the  way  to  the  latter."  1  The  means 
for  the  attainment  of  these  never  failing  objects  of 
desire  are  what  Hobbes  calls  "power,"  and  may 
consist  in  superior  faculties  of  body  or  mind,  or  in 
"  riches,  reputations  and  friends,"  or  in  the  "  secret 
working  of  God  which  men  call  good  luck."  2  Either 
or  all  these  powers  may  be  available  to  a  man  and 
may  in  varying  degrees  promote  his  happiness;  but 
the  greatest  of  all  powers  —  the  instrumentality  by 
far  the  most  efficient  for  the  attainment  of  men's 
desires  —  is  that  which  combines  the  powers  of 
many  men  united  by  common  consent  —  the  com- 
m  on  wealth.  _ 

On  such  a  doctrine  of  human  character,  ends  and 
motives  as  a  foundation,  Hobbes  proceeds  to  adapt 
the  prevalent  concepts  of  political  science  to  the  re- 
quirements of  his  superstructure.  He  is  as  indepen- 
dent of  established  conventions  in  the  later  as  in  the 
earlier  phase  of  his  work.  The  ancient  and  familiar 
terms  of  political  theory  are  adopted,  but  are  re- 
defined and  endowed  with  entirely  new  relations  and 
significance.  The  state  of  nature,  the  law  of  nature, 
the  governmental  contract,  natural  rights  and  sover- 
eignty —  in  short,  the  entire  apparatus  of  contempo- 
rary political  philosophy  —  assumed  under  the  bold 

1  Leviathan,  cha,p.  xi  (p.  52).  2  Ibid.,  chap.  x. 


268  POLITICAL  THEORIES 

manipulation  of  Hobbes  an  aspect  that  was  as  attract- 
ive to  the  pure  intellect  as  it  was  repulsive  to  the  theo- 
logical prejudice  of  his  time.  Upon  the  appearance  of 
the  Leviathan  he  was  recognized  at  once  as  the  chief 
of  the  rationalistic  school  of  philosophers.  The  effect 
of  this  doubtful  preeminence  upon  his  personal  fortunes 
illustrates  the  character  of  his  work.  As  a  defender  of 
royalty  he  expected  the  marked  favour  of  Charles  II 
when  the  Leviathan  appeared  in ,  Paris.  But  both 
Anglican  and  French  divines  in  the  entourage  of 
Charles  found  atheism  and  all  things  dangerous  in 
the  book.  " Non  istis  defensoribus"  was  their  cry; 
and  Hobbes  not  only  was  denied  the  royal  favour  but 
even  feared  for  his  life  in  Paris.  Accordingly  he 
returned  to  England  and  accepted  the  protection  of 
Cromwell. 

2.    TJie  State  of  Nature 

In  the  previous  chapters  of  this  history  we  have 
become  familiar  with  the  idea  of  a  natural  or  primitive 
condition  of  men,  anterior  to  the  appearance  of  social 
or  political  life.  The  idea  has  appeared  uniformly  in  a 
historical  aspect  —  as  expressing  conditions  that  once 
had  objective  actuality.  But  as  Hobbes  presents  the 
concept,  the  historical  aspect  is  wholly  disregarded 
and  the  natural  state  of  man  appears  as  an  inevitable 
conclusion  from  the  first  principle  of  human  nature. 
Human  actions  have  for  their  basis  —  and  their  only 
basis  —  "  a  perpetual  and  restless  desire  of  power  after 
power,  that  ceaseth  only  in  death." *  That  is,  as  follows 

1  Leviathan,  chap.  xi. 


HOBBES  ON  EQUALITY  269 

from  the  definition  of  "  power  "  mentioned  in  the  last 
section,  every  individual  is  striving  for  the  gratification 
of  his  appetites ;  and  these  appetites  vary  from  indi- 
vidual to  individual  according  to  bodily  constitution, 
education  and  experience.  But  whatever  diversity 
there  may  be  in  appetites,  in  ability  to  satisfy  them 
there  is  for  all  practical  purposes  equality  of  all  men. 
Conceding  the  obvious  differences  among  individuals  in 
physical  and  mental  faculties,  Hobbes  holds  that  in  the 
long  run  these  substantially  offset  one  another.  The 
man  who  is  weaker  physically  may  prevail  by  craft  and 
cunning  :  and  as  to  wisdom,  the  fact  that  each  thinks 
himself  the  wisest  is  itself  ground  for  the  inference  that 
all  are  substantially  equal ;  "  for  there  is  not  ordinarily 
a  greater  sign  of  the  equal  distribution  of  anything 
than  that  every  man  is  contented  with  his  share/' l 
Such  is  the  somewhat  cynical  form  in  which  is  sus- 
tained the  ancient  dogma  that  all  men  are  by  nature 
equal. 

As  a  result  of  the  foregoing  doctrines  the  normal 
condition  of  mankind  is  held  to  be  that  of  unceasing 
strife.  This  condition  has  three  chief  immediate 
sources :  first,  the  competition  between  man  and  man 
for  the  means  to  gratify  identical  appetites ;  second, 
the  fear  in  each  lest  another  surpass  him  in  power ; 
and  third,  the  craving  for  admiration  and  for  recogni- 
tion as  superior.  In  other  words,  the  natural  relation 
of  each  individual  to  every  other  is  determined  by 
motives  of  competition,  distrust  and  love  of  glory.2 
But  these  are  the  characteristics  of  actual  or  potential 

1  Ibid.j  chap.  xiii.  2  Ibid. 


270  POLITICAL  THEORIES 

war ;  and  such  is  indeed  the  condition  of  man  in  his 
natural  state.  The  hand  of  each  is  against  all ;  and  so 
long  as  there  is  no  common  superior  to  hold  them  in 
awe  every  man  is  the  enemy  of  every  man ;  science,  art, 
letters  and  the  other  evidences  of  enlightenment  re- 
main unknown ;  and  human  life  is  "  solitary,  poor, 
nasty,  brutish  and  short." 

Such  is  in  essence  Hobbes's  celebrated  theory  of  the 
state  of  nature  as  the  "  bellum  omnium  contra  omnes." 
It  is  founded  on  the  notion  that  man  is  purely  ego- 
istic in  his  emotions ;  but  however  questionable  this 
psychology  may  be,  the  conclusions  from  the  theory 
have  a  very  clarifying  influence  on  certain  concep- 
tions of  political  ethics.  From  the  assumptions 
already  described  the  natural  state  of  man  presents 
logically  the  following  characteristics.  First,  there 
exists  no  distinction  of  right  and  wrong.  The  im- 
pulses which  move  men  are  the  passions  which  are 
born  in  them,  and  there  is  no  standard  by  which 
any  one  of  these  passions  may  be  judged  morally 
different  from  any  other.  Only  when  some  rule  is 
established  by  which  to  compare  acts  can  rightness 
or  wrongness  be  predicated;  but  such  rule,  or  law, 
can  be  set  up  only  after  a  lawmaker  is  agreed  upon, 
v  and  such  agreement  ipso  facto  terminates  the  state 
of  nature.  Secondly,  there  is  no  distinction  of  just 
and  unjust  in  the  state  of  nature.  Here  comes  in 
Hobbes's  idea  of  justice,  —  the  antipodes  of  Plato's. 
Where  there  is  no  common  power  over  men,  Hobbes 
argues,  there  is  no  law,  and  where  there  is  no  law 
there  can  be  no  injustice.  Justice  and  injustice  are 


THE   STATE   OF  NATURE  271 

not  faculties  of  the  individual,  like  sense  and  emo- 
tion;  and   therefore   they   have   a   place,   not  in   a 
consideration   of  the   natural   or   solitary  man,  but 
only   where   men   are    regarded    as   united    to   one 
another  by  social  bonds.     Prior  to  or  independently 
of  the  formation  of  society  there  is  no  such  thing  as 
justice.     And  finally,  on  analogous  principles  there, 
is  no  such  thing  as  private  property.  *  Where  each  J 
individual   stands  in  precisely  the  same  relation  as 
every   other   to   all    external    objects,   might  alone  | 
determines  right;  " only  that  to  be  every  man's  that 
he  can  get,  and  for  so  long  as  he  can  keep  it." 1 

That  such  a  state  of  nature  as  he  conceives  ever 
had  a  general  objective  existence,  Hobbes  does  not  ^ 
for  a  moment  maintain.  But  he  very  suggestively 
sets  forth  certain  facts  which  sustain  his  contention 
that  the  fundamental  attitude  of  every  man  toward 
his  neighbour,  even  in  social  life,  is  that  of  distrust 
and  potential  war. 

When  taking  a  journey,  he  arms  himself  and  seeks  to  go 
well  accompanied;  when  going  to  sleep  he  locks  his  doors; 
when  even  in  his  honse  he  locks  his  chests ;  [consider]  what 
opinion  he  has  of  his  fellow-subjects,  when  he  rides  armed ; 
of  his  fellow-citizens,  when  he  locks  his  doors ;  and  of  his  chil- 
dren and  servants,  when  he  locks  his  chests.  .  .  .  Does  he  not 
there  as  much  accuse  mankind  by  his  actions  as  I  do  by  my 
words  ? 2 

Moreover,  the  conditions  of  life  among  the  Ameri- 
can Indians  exhibit,  Hobbes  thinks,  the  actuality  of 
his  natural  state.  So,  too,  the  times  of  civil  war  in 
civilized  states,  when,  in  the  lack  of  an  effective 

1  Leviathan,  chap.  xiii.  Ibid. 


272  POLITICAL   THEORIES 

common  power,  the  natural  passions  of  men  resume 
sway.  And  finally,  the  standing  attitude  of  sover- 
eigns toward  one  another  —  "  having  their  weapons 
pointing  and  their  eyes  fixed  on  one  another  ;  "  that 
is,  their  forts,  garrisons  and  guns  in  readiness  and 
their  spies  ever  active,  —  all  this  is  eloquent  of  the 
normal  and  natural  relation  between  beings  with  no 
common  superior. 

3.   Natural  Rights  and  Natural  Law 

In  leading  up  to  his  theory  of  the  transition  from 
the  natural  to  the  political  aspect  of  mankind, 
Hobbes  made  a  clear  distinction  between  natural 
right  and  natural  law  —  ius  naturale  and  lex  naturalis. 
The  relation  of  these  terms  to  one  another  had  long 
been  an  obscure  and  unsettled  question ;  the  solution 
proposed  by  Hobbes  lacked  nothing  in  clearness, 
whatever  it  may  have  lacked  in  other  respects.1 
Natural  right,  he  declared,  signifies  simply  the 
liberty  possessed  by  every  man  of  doing  what  seems 
best  for  the  preservation  of  his  existence.  "  Liberty  " 
here  means  the  absence  of  external  impediments; 
one's  power  to  preserve  himself  may  be  limited  by 
circumstances  —  as  when  a  man  is  lost  in  a  desert, 
but  so  far  as  his  power  extends,  his  right  is  by 
nature  complete.  Natural  law,  on  the  other  hand, 
implies  primarily  restraint  rather  than  liberty.  It 
designates  a  rule,  found  out  by  reason,  forbidding 
any  act  or  omission  that  is  unfavourable  to  preserva- 
tion. By  right  of  nature,  every  man  has  a  claim  to 

1  Leviathan,  chap.  xiv.     Also,  De  Corpore  Politico,  chap.  i. 


THE  LAWS  OF  NATURE  273 

whatever  will  satisfy  any  of  his  desires ;  by  the  law 
of  nature  he  is  obliged  to  renounce  some  part  of  his 
claim  for  the  more  certain  realization  of  the  rest. 
The  equal  natural  rights  of  all  men  are  what  make 
the  state  of  nature  a  state  of  war,  with  the  maxi- 
mum uncertainty  in  respect  to  life,  the  first  of 
human  desires ;  the  natural  law  is  a  body  of  princi- 
ples which  reason  devises  for  making  life  secure. 

From  this  conception  of  the  law  of  nature  it  fol- 
lows readily  that  the  first  precept  of  that  law  is,  to 
seek  peace  and  observe  it  —  to  escape,  that  is,  from 
the  state  of  war  which  is  natural  to  men.  But 
this,  reason  shows,  can  be  accomplished  only  by  the 
abandonment  by  each  of  his  natural  right  to  all 
things.  The  abandonment  must  be  general  and 
reciprocal.  Each  must  covenant  with  each  to  refrain 
from  the  exercise  of  his  natural  liberty.  This  obli- 
gation—  to  lay  down  the  natural  right  —  is  the 
second  of  the  laws  of  nature.  The  third  is,  "that 
men  perform  their  covenants  made/' 

This  subject  —  the  nature  of  promises  and  con- 
tracts and  of  the  obligation  involved  in  them  —  is 
discussed  by  Hobbes  with  much  elaboration,1  and  in 
his  most  characteristic  vein.  The  keeping  of  prom- 
ises is  in  his  system  all  that  is  meant  by  "  justice  "  ; 
and  "injustice"  is  but  the  failure  to  keep  them. 
The  making  of  a  promise  has,  like  every  other  volun- 
tary act  of  man,  self-interest  —  some  desire  for  good 
to  the  person  making  it  —  as  its  motive.  There  is 
in  the  nature  of  the  act,  therefore,  no  assurance  that 

1  Leviathan,  chaps,  xiv,  xv. 

VOL.  II.  —  T 


274  POLITICAL  THEORIES 

the  thing  promised  will  be  performed.  If  perform- 
ance becomes,  by  change  of  circumstances,  less  to 
his  advantage  than  non-performance,  the  latter  is 
naturally  his  right.  The  only  guarantee  for  the 
keeping  of  faith  is  the  certainty  that  the  greater 
good  lies  in  the  keeping.  But  this  certainty  only 
exists  when  a  superior  power  stands  ready  to  impose 
some  evil  for  the  failure  to  keep  the  pact.  No  such 
power  exists  in  the  state  of  nature  as  between  man 
and  man ;  hence  covenants  and  contracts  are  of  no 
significance  in  that  state.  It  is  for  this  reason  that 
justice,  which  is  merely  the  performance  of  contracts, 
has  no  existence  in  the  natural  state ;  where  all  men 
are  so  nearly  equal  that  none  has  power  to  hold  the 
rest  to  their  agreements,  there  is  no  basis  for  distinc- 
tion between  just  and  unjust.  This  doctrine  as  to 
the  nature  of  justice  has  important  consequences  at 
various  critical  points  in  Hobbes's  system,  and  must 
be  carefully  borne  in  mind  by  any  one  who  would 
properly  appreciate  his  philosophy. 

The  further  dictates  of  the  law  of  nature  are  set 
forth1  in  a  long  series  in  which  every  item  is 
precisely  and  ingeniously  derived  from  the  initial 
principles,  (1)  that  the  purpose  of  the  law  is  the  sub- 
stitution of  peace  for  war  as  the  prevalent  relation 
among  men,  and  (2)  that  self-interest  is  in  last  analy- 
sis the  sole  motive  of  human  actions.  "  Gratitude  " 
is  such  a  bearing  toward  one  who  has  (for  his  own 
interest,  of  course)  done  a  favour  that  he  shall  be 
willing  to  do  another.  "  Complaisance,"  or  sociabil- 

1  Leviathan,  chap.  xv. 


THE  LAWS  OF  NATURE  275 

ity,  "pardon/'  or  a  forgiving  disposition,  modesty, 
mercy,  —  are  shown  to  conduce  to  peace,  and  their 
opposites,  to  war.  "  Equity,"  also,  falls  here  within 
the  category  of  social  virtues,  and  is  identified  by 
Hobbes  with  what  from  Aristotle's  time  had  been 
known  as  distributive  justice.  For  practical  pur- 
poses the  laws^of  natuje  may  be  condensed,  he  holds, 
into  the  single  precept,  "  Do  not  that  to  another 
which  thou  wouldst  not  have  done  to  thyself." 

These  laws  of  nature  are  binding  upon  men  not 
in  the  sense  that  every  one  should  under  all  circum- 
stances actually  observe  them,  but  that  every  one 
should  desire  their  observance.  For  if  a  single  indi- 
vidual should  be  modest  and  sociable  and  faithful 
to  his  promises  while  all  the  rest  of  men  were  the 
contrary,  he  would  merely  destroy  himself,  which  is 
contradictory  of  nature  itself.1  These  prescriptions 
of  virtue_are  thus  in  the  strictest  sense  social.  They 
have  objective  validity  only  when  they  are  generally 
lived  up  to ;  and  conversely,  social  existence  among 
men  is  conceivable  only  so  far  as  they  are  lived  up 
to.  They  are  thus  the  logical  conditions  of  human 
society  and  of  political  life.  Moreover,  the  law  of 
nature,  as  thus  understood,  is  easily  seen  to  be,  as 
the  moral  philosophers  have  always  declared,  immu- 
table and  eternal,  but  not  for  precisely  the  reasons 
that  they  have  alleged.  It  is  immutable  and  eternal 
because  its  various  precepts  are  the  indispensable 
means  to  the  maintenance  of  peace,  and  peace  is  re- 

i  Ibid.  Cf.  Machiavelli,  The  Prince,  chap.  17 ;  Discourses,  I,  2. 
See  Political  Theories,  Ancient  and  Mediceval,  pp.  303  el  seq. 


276  POLITICAL   THEORIES 

garded  by  all  men  as  the  indispensable  means  to  tho 
fullest  satisfaction  of  their  desires.  Conformity  to 
these  precepts  —  gratitude,  good  faith,  equity,  mercy, 
etc.  —  is  "good"  and  "virtuous"  because  it  brings  this 
satisfaction  in  greatest  measure,  and  for  no  other  rea- 
son. This,  Hobbes  declares,  is  the  true  basis  of  moral 
philosophy ;  and  those  who  have  sought  other  foun- 
dations for  distinctions  of  right  and  wrong  have  gone 
hopelessly  astray. 

One  further  point  is  essential  to  a  clear  under- 
standing of  the  philosopher's  view  as  to  the  laws  of 
nature.  They  are  not,  in  fact,  laws  at  all,  though 
commonly  called  so  :  "  for  they  are  but  conclusions, 
or  theorems,  concerning  what  conduceth  to  [self-] 
conservation  and  defence;  whereas  law  properly  is 
the  wordof  him  that  by  right  hath  command  over 
ptliersj.' 1  Hobbes  thus  introduces  a  capital  distinc- 
tion between  morality  and  legality  which  is  more 
fully  developed  in  another  part  of  his  system.2  He 
concedes,  however,  that  the  dictates  of  reason  which 
figure  as  laws  of  nature  may  be  found  in  the  Bible 
as  commands  of  God,  and  from  that  point  of  view 
they  may  properly  be  called  laws. 

4.    The  Origin  of  the  Commonwealth 

Having  deduced  from  his  first  principle  of  human 
nature  natural  rights  and  natural  law,  Hobbes  pro- 
ceeded, in  the  second  part  of  the  Leviathan,  to  develop 
an  equally  novel  doctrine  as  to  the  contractual  rela- 

1  Leviathan,  chap,  xv,  end.  2  Cf.  infra,  pp.  293  et  seq. 


THE  SOCIAL  CONTRACT  277 

tion  which  had  come  to  be  generally  recognized  as 
the  ultimate  basis  of  the  state.  The  earlier  forms 
of  the  contract  theory  have  been  described  with  some 
fulness  in  preceding  chapters.  They  have  in  most 
cases  expressed  what  is  known  as  the  governmental 
contract  —  the  agreement  between  ruler  and  people  ; 
rather  than  the  social  contract  —  the  agreement 
through  which  a  people  is  created.  It  is  the  distinc- 
tion of  Hobbes  that  he  propounded  most  precisely 
and  explicitly  a  theory  of  the  social  contract  and 
gave  to  it  a  form  that  was  to  dominate  political 
philosophy  till  the  whole  contractual  manner  of 
thinking  fell  into  desuetude. 

There  are  two  ways,  Hobbes  holds,  in  which  a 
commonwealth  may  come  into  existence :  first,  by 
institution,  when  men  of  their  own  impulse  unite ; 
second,  by  acquisition,  when  the  impulse  to  union 
comes  from  the  superior  power  of  some  individual 
who  threatens  them  with  destruction.  Both  ways 
are  really  contractual  in  essence,  though  it  is  the 
commonwealth  by  institution  that  particularly  exem- 
plifies the  social  contract.  To  this  species  we  will 
follow  him  in  giving  our  first  attention.1 

The  state,  like  every  other  manifestation  of  human 
energy,  has  its  origin,  according  to  Hobbes,  in  the 
foresight  of  men  in  their  own  preservation  —  the 
rational  desire  to  escape  from  the  natural  condition 
of  war.  The  "social  impulse,"  in  which  other  phi- 
losophers find  the  first  cause  of  the  state,  is  not  the 
ultimate  fact.  Reason  shows  that  the  social  impulse 

1  Leviathan,  chaps,  xvii,  xviii. 


278  POLITICAL  THEORIES 

has  a  cause  that  is  more  remote,  namely,  the  desire 
for  self-preservation.  The  ceaseless  conflict  and  strife 
that  are  inevitable  so  long  as  men  follow,  in  the  state 
of  nature,  the  dictates  of  their  particular  appetites 
and  exercise  their  particular  powers  for  the  satisfac- 
tion thereof,  can  be  escaped,  reason  shows,  only  by 
setting  up  a  common  power  that  can  at  the  same 
time  restrain  and  protect  every  individual.  For  the 
establishment  of  this  common  power  it  is  essential 
that  a  single  will  be  constituted  that  shall  take  the 
place  of  the  multitude  of  wills  previously  active. 

A  commonwealth  is  said  to  be  instituted  when  a  multitude 
of  men  do  agree  and  covenant,  every  one  with  every  one,  that 
to  whatever  man  or  assembly  of  men  shall  be  given  by  the 
major  part  the  right  to  present  the  person  of  them  all,  that  is 
to  say,  to  be  their  representative  ;  every  one,  as  well  he  that 
voted  for  it  as  he  that  voted  against  it,  shall  authorize  all  the 
actions  and  judgments  of  that  man  or  assembly  of  men  in  the 
same  manner  as  if  they  were  his  own,  to  the  end  to  live  peace- 
ably amongst  themselves  and  be  protected  against  other  men.1 

Each  individual  says,  in  effect,  to  every  other  : 

I  authorize,  and  give  up  my  right  of  governing  myself  to, 
this  man  or  to  this  assembly  of  men,  on  this  condition,  that 
thou  give  up  thy  right  to  him  and  authorize  all  his  actions  in 
like  manner.2 


Conceived  as  based  on  such  a  formula, 
Hobbes  holds,  a_real  unity  —  a_single  s  personality 
taking  the  place  of  many.  Instead  of  a  multitude  of 
wills  pressing  in  perpetual  disharmony  and  conflict 
for  the  preservation  of  life  and  the  attainment  of  hap- 
piness, there  appears  a  single  will  determining  the 

1  Leviathan,  chap,  xviii.  2  IUd.,  chap.  xvii. 


THE  SOCIAL  CONTRACT  279 


common  welfare  and  achieving  it  through  the  irresist- 
ible might  that  inheres  in  the  joint  powers  of  all. 
The  individual  has  resigned  his  natural  rights ;  the 
state  has  assumed  them.  Its  right,  like  his  origi- 
nally, is  commensurate  with  its  might ;  and  its  might 
is  the  totality  of  the  powers  of  those  who  have 
instituted  it. 

Such  is  the  origin  and  nature  of  "  that  great  '  levia- 
than/ or  rather,  to  speak  more  reverently,  of  that 
'  mortal  god/  to  which  we  owe,  under  the  '  immortal 
God,'  our  peace  and  defence."  1  How  adroitly  Hobbes 
shaped  the  formula  of  his  contract  for  the  ulterior  pur- 
poses of  his  philosophy  will  appear  as  we  proceed.  At 
present  it  is  useful  merely  to  notice  certain  features 
of  the  formula  which  are  peculiarly  significant.  In 
the  first  place,  the  parties  to  the  contract  are  indi- 
vidual natural  men  —  not  groups  of  any  sort,  not 
the  "  people,"  vaguely  defined,  and  not  any  superior 
being  or  sovereign.  A  superior,  or  sovereign,  exists 
only  by  virtue  of  the  pact,  not  prior  to  it.  Individ- 
uals, naturally  equal,  agree  one  with  another  to  give 
up  their  natural  rights  to  a  common  recipient ;  this 
recipient  becomes  by  that  fact  their  superior,  but  he 
himself  is  no  party  to  the  contract.  In  the  second 
place,  it  is  to  be  observed  that  submission  to  the 
voice  of  the  majority  in  respect  to  the  designation  of 
the  sovereign  is  an  article  of  the  contract;  hence 
there  is  no  ground  left  on  which  a  minority  can  base 
just  resistance.  Finally,  the  end  sought  by  the  par- 
ties —  internal  peace  and  defence  from  external  foes 

i  Ibid. 


280  POLITICAL  THEORIES 

—  is  an  integral  element  of  the  contract,  and  must 
therefore  be  regarded  as  a  condition  of  its  continued 
existence.  Each  of  these  features  has  an  important 
relation  to  the  further  development  of  Hobbes's  theory. 
The  "  commonwealth  by  acquisition  "  is  in  its  essen- 
tial character  not  different  from  the  "  commonwealth 
by  institution  "  already  explained.  The  basis  of  each 
is  fear ;  but  in  the  one  men  fear  the  person  who  is 
said  to  acquire  the  power ;  in  the  other  they  fear  one 
another.1  It  is  a  characteristic  and  reiterated  dogma 
of  Hobbes  that  fear  of  death  or  violence  does  not 
naturally  make  void  a  contract  or  covenant  entered 
into  in  view  of  such  emotion ;  indeed,  as  has  already 
appeared,  fear  is  the  indispensable  condition  of  the 
contract  through  which  civil  society  is  created.  That 
the  laws  of  a  commonwealth  once  created  will  not 
enforce  contracts  made  under  duress,  is  nothing  to 
the  point.  Here  fear  of  the  sovereign  and  his  will 
supersede  the  fear  and  the  power  which  constrain  to 
the  keeping  of  the  pact ;  the  agreement  is  void,  not 
because  it  was  made  under  the  influence  of  fear,  but 
because  a  power  superior  to  both  parties  authorizes 
one  of  them  to  disregard  it  and  forbids  the  other  to 
visit  a  penalty  upon  him.  On  such  principles  Hobbes 
logically  holds  that  the  submission  of  a  multitude 
to  one  who  threatens  them  with  overwhelming  force 
is  a  contract  in  the  same  sense  as  the  submission  to 
one  whom  they  deliberately  select.  Hence  the  rela- 
tions of  sovereign  to  subject  are  precisely  the  same 
in  the  two  species  of  commonwealth. 

1  Leviathan,  chap.  xx. 


HOBBES  ON  SOVEREIGNTY  281 

All  power  thus  rests  upon  the  original  consent  of 
the  governed.  This  idea  Hobbes  consistently  applied 
even  to  paternal  and  despotic  dominion,  i.e.  the  power 
over  children  and  over  slaves.  He  proves,  with  dem- 
onstration more  ingenious,  perhaps,  than  convincing, 
that  parental  dominion  springs  "  from  the  child's 
consent,  either  express  or  by  other  sufficient  argu- 
ments declared ; "  and  as  to  slaves,  the  ancient  theory 
of  the  Roman  jurists,  that  their  condition  rests  upon  a 
covenant  for  the  preservation  of  their  lives,  is  readily 
adapted  to  the  requirements  of  the  Hobbesian  system. 

Having  seen  now  the  principles  and  process  at  the 
origin  of  political  institutions,  let  us  follow  out  the 
consequences  which  Hobbes  derives  as  to  the  essential 
factors  in  the  conception  of  sovereignty. 

5.    Sovereignty  and  Liberty 

By  the  sovereign  is  meant  that  individual  or 
assembly  who,  by  the  terms  of  the  contract  on  which 
the  commonwealth  rests,  is  authorized  to  will  in  the 
stead  of  every  party  to  the  contract,  for  the  end  of  a 
peaceful  life.  From  the  principles  already  laid  down, 
especially  the  definition  of  justice  as  merely  the 
observance  of  contracts,  the  following  conclusions 
are  held  by  Hobbes  to  be  inevitable : * 

1.  Every  act  of  disobedience  by  a  subject  is  unjust, 
whatever  the  ground  alleged  for  the  act.  An  agree- 
ment to  recognize  a  new,  in  place  of  the  former, 
sovereign  without  the  latter' s  permission,  is  unjust, 

i  Ibid.,  chap,  xviii. 


282  POLITICAL  THEORIES 

because  it  is  a  violation  of  the  pact  by  which  his  will 
was  recognized  as  the  will  of  each  of  the  persons 
contracting.  Subjects  slain  by  a  sovereign  for 
attempting  to  resist  or  depose  him  are  logically  sui- 
cides ;  for  they  have  formally  made  all  his  acts  their 
own.  Nor  is  the  situation  changed  when  a  covenant 
with  God  is  alleged  as  a  basis  for  disregarding  the 
rights  of  the  sovereign ;  for  the  sovereign  is  the  only 
agency  through  which  a  contract  with  God  can  be 
made.  But  this  pretence  of  a  covenant  with  God 
(the  Puritans'  argument)  is,  Hobbes  thinks,  an  "  evi- 
dent lie,  even  in  the  pretender's  own  conscience." 

2.  No  breach  of  the  original  pact  by  the  sovereign 
can  be  set  up  as  a  ground  for  its  violation  by  the 
subject.     For  the  sovereign  is  no  party  to  the  contract. 
It  is  an  agreement  of  each  man  of  a  multitude  with 
every  other  to  give  up  his  natural  rights  in  favour  of 
a  common  or  third  party,  but  this  third  party,  the 
sovereign,  gives  up  nothing,  and  retains  all  his  natural 
rights  and  powers.1     Hence  the  sovereign  cannot  do 
injustice  to  his  subjects ;  for  injustice  is  merely  the 
violation  of  covenant,  and  the  sovereign  is  by  hypoth- 
esis not  bound  by  any  covenant.     The  acts  of  a  sov- 
ereign may  involve  iniquity  —  i.e.  unequal  and  partial 
treatment  of  individuals  —  but  not  injustice. 

3.  There  is  no  justification  for  resistance  by  the 

1  The  absurdity  of  the  contention  that  the  sovereign  is  a  party  to 
the  pact  is  most  manifest,  Hobbes  says,  when  the  sovereign  is  an 
assembly  rather  than  a  monarch.  "For  no  man  is  so  dull  as  to 
say,  for  example,  the  people  of  Rome  made  a  covenant  with  the 
Romans  to  hold  the  sovereignty  on  such  or  such  conditions ;  which 
not  performed,  the  Romans  might  lawfully  depose  the  Roman  people." 


HOBBES  ON  SOVEREIGNTY  283 

minority  of  a  community  on  the  ground  that  it  did  not 
choose  the  sovereign  selected  by  the  majority.  The 
dissenters  either  did  or  did  not  agree  to  abide  by  the 
decision  of  t^e  majority :  if  they  did  so  agree,  it  is 
unjust  not  to  conform  to  their  agreement ;  if  they  did 
not  so  agree,  they  are,  in  respect  to  the  rest,  still  in  a 
state  of  nature,  and  all  the  rights  of  war  against  them 
are  available  without  any  question  of  justice. 

Sovereignty,  therefore,  implies  an  absolute  exemp- 
tion from  any  just  resistance  or  interference  on  the 
part  of  subjects.  Unlimited  power  and  unfettered 
discretion  as  to  ways  and  means  are  possessed  by  the 
sovereign  for  the  end  with  a  view  to  which  civil 
society  is  constituted,  namely,  peace  and  escape  from 
the  evils  of  the  state  of  nature.  The  specific  functions 
through  which  this  supreme  end  is  attained'1"  in  elude, 
according  to  Hobbes,  the  following  : 

First,  the  exercise  of  filial  judgment  as  to  the  ex- 
pression of  opinions  and  doctrines.  So  prolific  in  dis- 
cord is  freedom  of  expression  that  the  great  end  of 
civil  life  is  ever  in  peril  without  a  strict  sjapervision 
of  speech  and  writing  by  the  supreme  authority. 
This  is  Hobbes' s  concise  reply  to  the  Miltonic  plea  for 
unlicensed  printing. 

Second,  "  the  whole  power  of  prescribing  the  rules 
whereby  every  man  may  know  what  goods  he  may 
enjoy  and  what  actions  he  may  do,  without  being 
molested  by  his  fellow-subjects ;  and  this  is  it  men 
call  '  propriety/  " 1  In  other  Words,  Hobbes  ascribes 
to  the  sovereign  unrestricted  power  over  property, 

1  I.e.  property. 


284  POLITICAL  THEORIES 

with  no  such  qualification  in  behalf  of  private  rights 
as  Bodin  had  taken  care  to  set  up.1  The  English- 
man's view  is,  however,  precisely  logical.  The 
natural  right  to  all  things  which  originally  inheres 
in  each  individual  has  been  transferred  by  the  pact, 
and  hence  the  sovereign  possesses  it  in  its  entirety. 
There  is  no  room  in  Hobbes's  theory  for  the  ancient 
dogma  that  private  property  is  secure  by  a  law  of 
nature  that  is  above  the  supreme  law  of  the  state. 
The  discretionary  regulation  of  private  property  is, 
in  his  view,  the  chief  content  of  that  lawmaking 
which  constitutes  the  leading  function  of  the  sov- 
ereign. 

Third,  the  sovereign  has  the  right  of  determining 
all  controversies  between  subjects,  i.e.  the  right  of 
judicature.  This  is  an  obvious  inference  from  the 
prime  end  of  maintaining  internal  peace. 

Fourth,  the  whole  right  of  making  war  and  peace 
with  other  states,  with  absolute  control  of  the  resources 
of  the  subjects  in  carrying  out  the  policy  chosen,  is  an 
attribute  of  sovereignty.  This  again  is  an  obvious 
inference  from  first  principles ;  for  the  military  or- 
ganization of  the  people  is  the  sole  security  for  that 
defence  which  is  a  prime  end  of  the  state,  and  the 
unity  of  this  organization  can  exist  only  through  a 
definite  head.  It  is,  moreover,  only  in  the  military 
resources  that  sovereignty  has  existence ;  for  by 
hypothesis  the  right  of  the  commonwealth  is  identical 
with  its  might,  and  the  army  is  the  visible  organ  of 
this  might. 

i  Supra,  p.  99. 


HOBBES   ON  LIBERTY  285 

Fifth,  and  lastly,  the  sovereign  is  the  sole  source 
of  official  authority  in  counsellors  and  magistrates,  of 
honours,  wealth  and  privileges  conferred  for  service 
to  the  state,  and  of  the  gradations  of  dignity  among 
the  recipients  of  such  rewards. 

Such  are  the  marks  by  which  the  possession  of 
sovereignty  may  be  recognized.  These  attributes 
are  incommunicable  and  inseparable.  Other  powers, 
such  as  the  coining  of  money,  usually  possessed  by 
the  sovereign,  may  be  granted  away ;  but  the  absence 
of  any  one  of  those  above  enumerated  is  fatal  to  the 
ability  to  maintain  peace  and  is  therefore  fatal  to  the 
idea  of  a  commonwealth.  Whatever  may  be  the  in- 
conveniences of  such  absolute  power  in  the  hands  of 
any  man  or  body  of  men,  the  only  alternative  is  the 
incomparable  misery  of  the  state  of  nature  —  "that 
dissolute  condition  of  masterless  men,  without  subjec- 
tion to  laws  and  a  coercive  power  to  tie  their  hands 
from  rapine  and  revenge." 

As  the  complement  of  his  very  positive  concep- 
tion of  sovereignty,  Hobbes  formulates  a  doctrine  of 
liberty  which  is  in  the  sharpest  contrast  to  that 
which  was  set  forth  by  the  Levellers  and  by  Milton. 
His  philosophy  is  indeed,  like  theirs,  in^mdualistic. 
He  takes  the  interest  of  the  individual  man  as  the 
starting-point  of  his  political  theory;  but  he  does 
not  recognize  that  interest  as  involving  the  retention 
of  any  rights  as  against  the  state  when  once  consti- 
tuted. There  is  in  his  discussion  of  liberty 1  a  cold 
and  rigidly  logical  dissection  of  the  glowing  and 

1  Leviathan,  chap.  xxi. 


286  POLITICAL  THEORIES 

generous  ideals  which  the  humanistic  adversaries  of 
monarchy  had  set  up.  The  most  prolific  source  of 
error  he  finds  to  be  the  confusion  of  "liberty" 
signifying  the  independence  and  self-determination 
of  a  commonwealth  with  "  liberty  "  as  predicated  of 
a  citizen  in  relation  to  his  own  state ;  a  blind  accept- 
ance of  the  authority  of  Aristotle,  Cicero  and  other 
ancients  has  been,  Hobbes  thinks,  the  means  through 
which  this  error  has  been  propagated.  In  truth, 
liberty  signifies  merely  the  absence  of  external  im- 
pediments to  motion,  or,  in  the  case  of  rational  beings, 
the  absence  of  impediments  to  doing  what  they  have 
the  will  to  do.  Itis  consistent  with  fear ;  as  when 
a  man  at  sea  is  at  liberty  to  throw  overboard  his 
goods  when  possessed  by  fear  that  the  ship  will  sink. 
It  is  consistent  with  necessity ;  as  man's  freedom  to  do 
what  he  will  is  accompanied  by  the  necessity  of  con- 
forming to  the  eternal  will  of  God.  Liberty  in  this 
sense  is  the  attribute  of  every  commonwealth,  that  is, 
of  the  sovereign  in  whom  the  will  of  the  whole  is 
unified.  But  for  the  individual  within  the  common- 
wealth liberty  exists  only  with  a  radical  qualification.  ^ 
Each  individual  has,  in  the  original  pact,  set  up  an-  1 
other  will  to  supersede  his  own,  and  the  expressions  j 
of  this  will,  that  is,  the  laws  of  the  state,  backed  up 
by  the  overwhelming  power  of  the  state,  constitute 
an  impediment  that  puts  him  in  a  totally  different 
position  from  that  of  a  sovereign.  In  short,  the! 
liberty  of  the  subject  can  properly  be  thought  of  only 
in  relation  to  the  laws  of  the  commonwealth.  * 

From  this  point  of  view  the  content  of  individual 


HOBBES   ON  LIBERTY  287 

liberty  within  the  state  has  nothing  of  that  alluring 
scope  which  Milton  described.  It  is  summed  up, 
according  to  Hobbes,  under  two  categories:  first, 
whatever  the  sovereign,  that  is,  the  law  of  the  land, 
has  not  forbidden ;  and  second,  what  cannot,  by  the 
nature  of  the  original  pact,  be  given  up.  As  to  the 
first  of  these  elements,  it  is  not  at  all  to  be  under- 
stood that  the  liberty  of  the  subject  is  in  any  sense 
a  limitation  upon  the  right  of  the  sovereign.  Right 
is  still  but  might,  and  the  power  of  the  sovereign  to 
take  away  the  life  or  the  property  of  the  subject  is 
not  affected  by  the  fact  that  such  power  has  not  been 
announced  in  any  formal  law.  No  claim  of  injustice 
can  be  raised  against  the  sovereign  who  kills  or 
banishes  a  subject  without  a  legal  ground  ;  for  justice 
is  but  the  keeping  of  covenants,  and  there  is  no 
covenant  between  sovereign  and  subject.  Equity 
may  be  violated  by  such  an  act,  but  not  justice. 
Thus  the  Athenian  practice  of  ostracism,  Hobbes 
points  out,  was  often  iniquitous  but  never  unjust; 
it  was  the  act  of  the  sovereign  by  right  of  sovereignty, 
not  the  act  of  the  magistrate  enforcing  a  law. 

While  the  liberty  which  consists  in  what  the 
sovereign  has  not  forbidden  is  revealed  by  such  con- 
siderations to  be  but  Dead  Sea  fruit,  the  individual 
receives  from  Hobbes  a  scarcely  more  nourishing  gift 
in  the  second  element  of  liberty  —  what  could  not  be 
surrendered  in  the  original  contract.  _Eveix covenant 
of  man  .has  in  view,  ^hypothesis,  the  jntgrest^^of 
him  who  makes^  it.  The  pact  by  which  the  state 
is  formed  must  be  interpreted  in  view  of  this  princi- 


288  POLITICAL  THEORIES 

pie,  and  must  be  construed  in  every  case  as  designed 
to  preserve  the  life  of  the  individual.  Hence  there  is 
no  promise  by  the  latter  to  do  what  contravenes  this 
end.  Without  injustice,  therefore,  the  individual 
may,  in  disobedience  to  the  sovereign's  command, 
refuse  to  kill  himself,  resist  assault,  refuse  to  accuse 
himself  of  an  offence  that  would  jeopardize  his  life, 
and,  with  certain  qualifications,1  refuse  to  serve  in 
the  army.  He  may,  indeed,  be  slain  by  the  sovereign 
for  disobedience  in  any  of  these  respects ;  but  there 
would  be  no  question  of  justice  involved.  All  acts 
in  connection  with  such  matters  lie  outside  the  sphere 
of  civil  relations  and  are  determined  by  natural 
right. 

Such  is  the  doctrine  by  which  Hobbes  shuts  out 
the  pretensions  of  those  who  maintain  that  personal 
liberty,  private  property,  freedom  of  expression,  free- 
dom of  conscience  and  other  privileges  are  rights  in 
the  individual  which  may  be  infringed  by  the 
sovereign  only  through  injustice.  There  is  in  his 
method  an  obvious  element  of  dialectic  sophistry ;  for 
some  of  his  most  telling  points  depend  upon  his  defi- 
nition of  justice,  which  is  designedly  made  so  narrow 
as  to  exclude  many  relations  of  expediency  or  utility 
which  his  adversaries,  and  indeed  all  philosophic 
usage,  include  within  the  term.  But  apart  from  this, 
Hobbes  is,  like  Bodin,  on  impregnable  ground  in 
holding  to  the  thesis  that  the  happiness  of  man  in 
society  is  inseparable  from  the  recognition  of  a  su- 
preme power,  in  whose  unquestioned  authority,  what- 

1  One  is,  that  he  furnish  a  substitute. 


SUBJECT  AND  SOVEREIGN  289 

ever  its  inconveniences,  lies  the  only  escape  from  the 
greater  inconveniences  of  anarchy. 

In  case  anarchy  dd^actually  come  upon  a  society, 
and  the  sovereign  no  longer  possess  the  power  to  give 
the  subjects  that  protection  which  is  for  them  the  sole 
end  of  the  social  pact,  their  obligation  to  the  sovereign 
ipso  facto  ceases.  Such  a  situation  may  arise  as  a 
result  of  war,  either  foreign  or  civil.  In  the  case  of 
foreign  war,  Hobbes' s  principle  assures  a  simple  expla- 
nation of  the  result  when  either  subject  or  sovereign 
monarch  falls  into  the  power  of  the  enemy.1  More 
complex  is  the  case  of  civil  war.  May  a  subject  with- 
out injustice  abandon  his  allegiance  to  an  old  sovereign 
when  unjust  rebellion  has  triumphed  ?  Yes,  Hobbes  in 
substance  answers  ;  for  in  the  existing  situation,  which 
is  really  a  recurrence  of  the  state  of  nature,  all  con- 
siderations of  justice  disappear  and  the  individual  is 
necessarily  determined  in  his  acts  by  the  single  motive 
of  gaining  the  protection  which  de  facto  the  former  sov- 
ereign no  longer  can  give  him.  The  precise  moment 
at  which  submission  to  the  conquering  power  becomes 
the  privilege  of  the  subject,  is  in  general  that  at  which 
the  means  of  preserving  his  life  are  in  the  possession 
of  that  power.2  This  doctrine  was  emphasized  by 
Hobbes  in  the  "  Keview  and  Conclusion "  which  he 
wrote  as  a  postscript  to  the  Leviathan,  and  his  enemies 
did  not  fail  to  point  out  that  his  philosophy  here  was 

1  Leviathan,  chap,  xxi  (Morley,  p.  105). 

2  If  the  subject  be  in  the  military  service  of  his  sovereign,  he 
is  bound  to  remain  faithful  so  long  as  there  is  enough  of  an  army  left 
to  assure  him  the  degree  of  protection  that  a  soldier  may  expect.  — 
"Review  and  Conclusion"  (Morley,  p.  316). 

VOL.  II.  —  U 


290  POLITICAL  THEORIES 

3* 

particularly  adaptable  to  the  justification  of  one  who, 

like  himself,  had  deserted  the  royalists  and  made  his 
peace  with  Cromwell. 

6.    Government  and  Law 

The  conception  of  sovereignty  is  the  key  to  all 
Hobbes's  discussion  of  government  and  law.  He  does 
not  lay  any  special  stress,  as  Bod  in  did,  on  the  distinc- 
tion between  sovereign  and  government,  but  merely 
assumes  that  all  essential  and  ultimate  attributes  of 
political  existence  and  action  are  inherent  in  the 
former.  The  kinds  of  commonwealth  are  determined 
by  the  single  criterion  of  the  number  of  persons  consti- 
tuting the  sovereign.  When  one  man  is  vested  with  all 
the  powers  of  the  multitude  who  constitute  the  society, 
the  state  is  monarchic ;  when  these  powers  inhere  in 
an  assembly  to  which  every  man  may  belong  if  he 
choose,  it  is  democratic ;  when  the  assembly  is  limited 
to  certain  men,  the  state  is  aristocratic.  No  other 
form  than  these  three  is  conceivable.  A  "mixed 
form  "  of  state  is  as  absurd  to  Hobbes  as  it  had  been 
to  Bodin,  and  such  alleged  forms  as  "  tyranny "  and 
" oligarchy"  have  no  basis  save  in  the  feelings  of 
those  who  use  the  terms. 

For  they  that  are  discontented  under  monarchy  call  it 
tyranny;  and  they  that  are  displeased  with  aristocracy  call  it 
oligarchy ;  so  also  they  which  find  themselves  grieved  under  a 
democracy  call  it  anarchy,  which  signifies  want  of  government ; 
and  yet  I  think  no  man  believes  that  want  of  government  is 
any  new  kind  of  government;  nor  by  the  same  reason  ought 
they  to  believe  that  the  government  is  of  one  kind  when  they 
like  it,  and  another  when  they  dislike  it  or  are  oppressed  by 

the  governors.1 

1  Leviathan,  chap.  xix. 


HOBBES  ON  MONARCHY  291 

Among  these  three  forms  of  state  which  alone  are 
thinkable  there  is  no  distinction  whatever  in  extent 
of  power  ;  in  each  the  sovereign  has  the  same  at- 
tributes as  in  either  of  the  others.  The  question  as 
to  which  of  the  three  is  preferable  depends  not  at  all 
on  the  fact  that  one  or  the  other  is  more  or  less  abso- 
lute, but  on  the  fact  that  one  or  the  other  is  better 
adapted  to  direct  the  same  absolute  power  to  the 
single  end  of  maintaining  peace  and  security.  On 
this  basis  Hobbes  makes  a  temperate  and  strong  but 
not  novel  plea  for  monarchy.  Among  the  advan- 
tages of  this  form  are  (1)  the  identity  of  private  with 
public  interest  in  the  sovereign  —  the  fact  that  the 
wealth  and  glory  of  the  state  are  the  wealth  and 
glory  of  the  monarch ;  (2)  the  greater  consistency  and 
freedom  from  fluctuation  in  policy  —  since  the  natural 
inconstancy  of  the  human  mind,  bad  enough  in  an 
individual,  is  greatly  multiplied  in  an  assembly ;  and 
(3)  the  fact  that  the  iniquitous  bestowal  of  riches 
and  power  on  favourites  —  a  prime  evil  of  monarchy 
—  is  a  much  worse  evil  in  the  other  forms  of  state, 
since  the  favourites  of  a  monarch  are  few,  while  the 
favourites  of  a  group  of  men  are  proportionately  many. 
Of  the  inconveniences  of  monarchy  Hobbes  evidently 
feels  those  relating  to  the  succession  to  be  the  most 
serious,  and  he  makes  a  most  ingenious  argument  to 
show  that  the  evils  involved  are  multiplied  and  mag- 
nified in  the  other  forms  of  state.  In  general  he  lays 
it  down  roundly  and  unqualifiedly  that  "there  is 
no  perfect  form  of  government  where  the  disposing 
of  the  succession  is  not  in  the  present  sovereign." 


292  POLITICAL  THEORIES 

Hence  elective  and  limited  kings  are  in  no  sense  true 
monarchs ;  their  states  are  in  fact  democratic  or 
aristocratic.1 

It  is  clear  from  the  foregoing,  and  is  sustained 
throughout  Hobbes's  work,  that  his  view  as  to  the 
part  of  the  sovereign  in  the  affairs  of  a  state  is  sub- 
stantially that  described  by  Bodin.  All  the  organs 
of  government  —  parliaments,  corporations,  magis- 
trates2—  are  mere  agencies  for  carrying  out  the 
sovereign  will,  and  have  life  and  authority  only 
through  this  will.  The  functions  which  the  sover- 
eign must  exercise  in  order  to  fulfil  the  end  of  its 
existence  are  described  by  Hobbes  in  the  sense  of 
contemporary  institutions;  the  supervision  and  pro- 
motion of  trade  and  industry,3  the  direction  of  educa- 
tion and  the  prescription  of  religious  worship  are  no 
less  a  part  of  the  sovereign's  duty  than  the  main- 
tenance of  physical  peace  and  security  within  and 
without  the  dominion.  The  normal  means  for  the 
performance  of  all  these  functions  is  legislation,  and 
the  relation  of  the  sovereign  to  law  is  a  capital 
feature  of  Hobbes's  system.4  Here  the  English  phi- 
losopher, though  starting  from  the  same  point  as 
Bodin  and  actuated  by  the  same  general  purpose, 
proved  himself  far  superior  in  overcoming  the  ob- 

1  Leviathan,  chap.  xix. 

2  For   Hobbes's  theory   of  corporations,   see  Ibid.,  ch.  xxii ;    for 
magistrates,  see  chap,  xxiii. 

8  The  economic  functions  are  treated  quaintly  and  with  a  wealth 
of  biological  analogy  in  chap,  xxiv,  "  Of  the  Nutrition  and  Procreation 
of  a  Commonwealth." 

4  Leviathan,  chap.  xxvi. 


HOBBES   ON  LAW  293 

stacles  that  beset  the  way  to  the  desired  goal.  Both 
thinkers  were  seeking  to  place  the  monarch  of  the 
day  in  a  position  logically  secure  against  the  factions 
who  were  putting  forward  claims  to  exemption  from 
his  authority  under  cover  of  divine  and  natural  law 
and  custom.  To  these  claims  Hobbes  presented  an 
unassailable  bulwark. 

The  greatest  improvement  made  by  Hobbes  upon 
his  predecessor  is  undoubtedly  to  be  found  in  the 
Englishman's  analysis  of  the  term  "  law."  The  so- 
called  laws  of  nature  are  not,  he  says,  really  laws, 
but  merely  "  conclusions  or  theorems  concerning 
what  conduceth  to  the  conservation  and  defence " 
of  men.  "  Law,  properly,  is  the  word  of  him  that 
by  right  hath  command  over  others."  1  The  ultimate 
human  right  to  command  is  vested  in  the  sovereign 
by  the  contract  through  which  the  state  is  instituted. 
Civil  laws,  then,  consist  in  expressions  or  other  mani- 
festations of  the  will  of  the  sovereign,  who  himself 
is  not  bound  thereby.  Custom  is  law  only  because 
of  the  sovereign's  will  as  manifested  in  his  silence. 
Divine  law  is  that  which  emanates  from  the  will  of 
God.  Ultimately  the  law  of  nature  may  be  regarded 
as  divine  law,  though  it  is  present  to  men  not  directly 
as  a  command,  but  as  a  body  of  principles  found  out 
by  the  reason.  A  directly  revealed  command  of  God 
addressed  to  a  particular  person  or  people  is  law 
proper,  and  is  designated  as  "  divine  positive  law." 

Discriminating  thus  between  the  different  kinds 
of  law,  Hobbes  boldly  grapples  with  the  difficulties 

1  Leviathan,  chap.  xv. 


294  POLITICAL  THEORIES 

bound  up  in  the  question  of  interpretation.  He  will 
not  leave  open  here  a  refuge  for  the  enemies  of  order. 
All  laws,  he  says,  need  interpretation,  particularly 
the  unwritten  law  of  nature.  But  this  latter  becomes 
law  proper  only  when  it  is  embodied  in  commands 
of  the  sovereign  ;  and  for  the  citizen  the  binding 
interpretation  in  this  case,  as  in  the  case  of  civil  laws 
pure  and  simple,  is  that  of  the  sovereign,  through 
his  duly  constituted  judges.  Hobbes  has  no  patience 
with  those  who  look  to  the  moral  philosophers  for 
authority  as  to  the  law  of  nature,  or  to  the  commen- 
tators for  the  meaning  of  the  civil  laws. 

The  interpretation  of  the  laws  of  nature  in  a  commonwealth 
dependeth  not  on  the  books  of  moral  philosophy.  The  author- 
ity of  writers  without  the  authority  of  the  commonwealth 
maketh  not  their  opinions  law,  be  they  never  so  true.  That 
which  I  have  written  in  this  treatise  concerning  the  moral 
virtues,  .  .  .  though  it  be  evident  truth,  is  not,  therefore, 
presently  law.  .  .  .  For  though  it  be  naturally  reasonable,  yet 
it  is  by  the  sovereign  power  that  it  is  law. 

And  again: 

When  question  is  of  the  meaning  of  written  laws,  he  is  not 
the  interpreter  of  them  that  writeth  a  commentary  upon  them. 
For  commentaries  are  commonly  more  subject  to  cavil  than  the 
text,  and  therefore  need  other  commentaries  ;  and  so  there  will 
be  no  end  of  such  interpretations. 

As  to  custom,  it  is  law  not  because  it  has  long 
prevailed  or  because  it  is  reasonable,  but  because  the 
sovereign  clearly  wills  that  it  shall  be  binding. 
Against  that  will  neither  the  length  of  time  during 
which  it  has  prevailed,  nor  the  opinion  of  any  person 


SOVEREIGN  AND  LAW  295 

that  it  is  reasonable,  has  any  effect  to  maintain  it  as 
law.  All  law,  indeed,  must  be  reasonable,  but  the 
question  always  is,  whose  reason  is  the  standard. 
Here  Hobbes  concisely  repudiates  Coke's  elaborate 
conception  of  law  as  the  "  artificial  perfection  of 
reason "  obtained  by  the  lawyers  and  jurists,  and 
declares  that  the  only  test  is  the  sovereign's  reason 
as  embodied  in  the  sovereign's  will. 

Thus  the  footing  which  the  factions  have  found  in 
various  interpretations  of  the  moral  and  the  civil  law 
and  of  custom  is  swept  away,  and  the  sovereign 
stands  triumphant.  But  there  remains  one  other 
hope  for  the  adversaries  of  absolutism.  What  if  they 
could  oppose  to  the  sovereign  a  directly  revealed  com- 
mand of  God  ?  Such  a  command,  Hobbes  readily 
admits,  must  supersede  all  human  authority.  But 
could  the  knowledge  of  such  a  command  be  indepen- 
dent of  human  judgment  ?  If  all  men,  in  the  presence 
of  one  another,  should  receive  an  identical  manifesta- 
tion of  God's  will,  that  would  be  conclusive.  But  when 
some  one  man  or  body  of  men  comes  forward  claim- 
ing to  have  received  privately  a  revelation  from  God, 
how  shall  other  men  be  satisfied  of  its  authenticity  ? 
Hobbes  can  find  no  adequate  answer  to  this  question, 
and  his  solution  of  the  whole  problem  is  reached  on 
the  same  lines  that  have  been  followed  in  connection 
with  the  law  of  nature  and  the  civil  law. 

In  all  things  not  contrary  to  the  moral  law,  that  is  to  say, 
to  the  law  of  nature,  all  subjects  are  bound  to  obey  that  for 
divine  law  which  is  declared  to  be  so  by  the  laws  of  the 
commonwealth. 


296  POLITICAL  THEORIES 

And  the  reason  of  this  is  simple. 

If  men  were  at  liberty  to  take  for  God's  commandments 
their  own  dreams  and  fancies,  or  the  dreams  and  fancies  of 
private  men,  scarce  two  men  would  agree  upon  what  is  God's 
commandment ;  and  yet  in  respect  of  them,  every  man  would 
despise  the  commandments  of  the  commonwealth.1 

With  logic  like  this  there  is  no  possibility  of  such 
confusion  as  had  arisen  in  previous  systems  over  the 
relation  of  the  sovereign  to  the  laws  of  God,  of  nature 
and  of  nations.  So  far  as  the  subjects  are  concerned, 
the  sovereign's  formal  judgment  is  the  law  of  God,  the 
law  of  nature  and  the  law  of  nations.  The  qualifica- 
tions introduced  by  Bodin  in  the  original  theory  of 
sovereignty2  ar^e  thus  avoided,  and,  moreover,  the 
pains  taken  by  Grotius  to  hedge  in  the  sovereign  by 
the  ius  gentium  are  rendered  nugatory.  Hobbes  lays 
down  in  round  terms,  what  has  been  shown  to  be 
implied  though  elaborately  denied  by  Grotius,  that 
"the  law  of  nations  and  the  law  of  nature  is  the 
same  thing."8  Every  sovereign  is  in  a  state  of 
nature  as  to  every  other  sovereign,  and  the  law  of 
nations  is  merely  the  dictates  of  reason  as  to  the 
conduct  best  adapted  to  secure  the  desires  of  each. 

7.   State  and  Church 

The  general  attitude  of  Hobbes  toward  the  relation 
between  religion  and  politics  is  pretty  clearly  indi- 
cated in  the  doctrine  just  described  as  to  divine  and 

1  Leviathan,  chap.  xxvi.  2  Supra,  p.  98. 

3  Leviathan,  chap,  xxx,  end.  It  is  interesting  to  notice  also  that 
Hobbes  fully  recognizes  the  law  of  nations  as  international  law  :  "the 
offices  of  one  sovereign  to  another,  which  is  commonly  called  the  '  law 
of  nations.' " 


HOBBES'S  EKASTIANISM  297 

civil  law.  But  it  was  not  the  philosopher's  way  to 
dismiss  so  prominent  a  topic  of  current  controversy 
with  anything  less  than  the  most  exhaustive  exam- 
ination. Hence  nearly  half  of  the  Leviathan1  is 
devoted  to  an  exposition  of  the  theological  and  eccle- 
siastical principles  that  supplement  its  moral  and 
political  theory.  The  shock  and  repulsion  produced 
by  the  Hobbesian  system  in  the  circles  of  traditional 
and  established  divinity  is  intelligible  to  the  most 
casual  reader  of  the  philosopher's  chapters.  He 
applies  to  the  sacred  mysteries  of  the  Christian 
religion  the  method  of  precise  and  unemotional  defi- 
nition, and  he  deduces  his  concepts  of  God  and  faith 
and  worship  from  his  dogmas  as  to  matter  and 
motion  and  human  desire.  Atheist  he  is  not ;  but 
it  is  easily  conceivable  that  he  should  have  been 
considered  one  by  the  pious  souls  of  his  day,  for  his 
God  is  much  more  like  no  God  than  like  the  God  of 
Judaism  or  of  traditional  Christianity.  Hobbes  was 
in  fact  a  deist  —  the  earliest  of  the  group  which  was 
in  the  next  century  to  include  many  men  of  great 
power.  Ecclesiastically  he  was  Erastian,  and  his 
exaltation  of  the  political  sovereign  left  no  room  for 
any  church  save  as  a  dependency  of  the  sovereign  will. 
A  church,  as  signified  by  natural  reason  and  by 
the  teachings  of  Scripture,  Hobbes  defines  thus: 

A  company  of  men  professing  the  Christian  religion,  united 
in  the  person  of  one  sovereign,  at  whose  command  they  ought 
to  assemble,  and  without  whose  authority  they  ought  not  to 
assemble.2 

1  Part  III,  «  The  Christian  Commonwealth  "  ;  and  Part  IV,  "  The 
Kingdom  of  Darkness."  2  Leviathan,  chap,  xxxix. 


298  POLITICAL  THEORIES 

It  follows  from  this  (1)  that  any  body  of  men 
meeting  for  worship  without  the  sovereign's  com- 
mand is  no  church,  but  merely  an  unlawful  assembly ; 
and  (2)  that  there  is  no  such  thing  as  a  universal 
church,  since  there  is  no  all-inclusive  commonwealth. 
Dissenters  and  Roman  Catholics  are  stripped  of  their 
ecclesiastical  pretensions  by  these  Hobbesian  dogmas, 
and  the  established  national  church  is  left  alone  with 
claims  of  rights.  But  the  ancient  dignity  and  juris- 
diction of  even  the  national  church  are  at  once  in- 
sulted by  the  philosopher's  downright  repudiation  of 
such  a  concept  as  that  of  "  spiritual  government." 
" '  Temporal '  and  '  spiritual '  government,"  he  says, 
"  are  but  two  words  brought  into  the  world  to  make 
men  see  double  and  mistake  their  lawful  sovereign." 
There  is  no  government  in  this  life  but  the  temporal ; 
any  other  idea  leads  merely  to  faction  and  civil  war 
between  the  state  and  what  is  called  the  church.1 
Moreover,  Hobbes  leaves  no  hope  for  those  who 
would  maintain  for  ecclesiastical  dignitaries  some 
peculiar  and  independent  authority  under  the  desig- 
nation "pastoral."  The  sovereign,  he  holds,  is  the 
supreme  pastor  and  the  source  of  all  authority  con- 
noted by  that  name.  He,  and  he  only,  has  his 
authority  immediately  from  God ;  bishops  —  and  here 
Hobbes  is  especially  offensive  to  the  Anglican  divines 
of  his  day  —  have  their  dignities  not  Dei  gratia,  but 
Regis  gratia? 

1  Leviathan,  chap,  xxxix,  end. 

2  Ibid.,  chap.  xlii.     The  sovereign,  Hobbes  gravely  argues,  is  the 
supreme  pastor  of  his  subjects  and  has  full  authority  to  preach,  bap- 
tize and  administer  the  sacraments.     He  delegates  this  authority  to 


HOBBES  ON  TOLERATION  299 


These  extreme  doctrines  are  sustained  in  the  Levia- 
than by  reasoning  which  involves,  not  only  the  defini- 
tion and  deduction  that  are  employed  in  the  purely 
political  parts  of  the  work,  but  also  the  pursuit  of 
the  theologians  into  their  special  and  familiar  field 
of  citation  and  interpretation  of  the  Bible.  The 
ultra-rationalistic  spirit  in  which  Hobbes  deals  with 
the  old  texts  and  adduces  new  gives  results  that 
are  often  startling  even  at  the  present  day.1  Bellar- 
min,  as  the  most  effective  exponent  of  the  claims  of 
the  Papacy,  receives  the  honour  of  a  step-by-step 
refutation;2  the  doctrines  of  the  Separatists  and 
Independents  are  treated  incidentally  to  the  general 
scheme  of  the  work. 

It  is  to  be  noted  that  Hobbes,  stiff  as  he  is  in 
maintaining  that  the  power  of  the  sovereign  in 
matters  of  religious  worship  is  plenary,  tends,  never- 
theless, as  his  rationalistic  spirit  would  naturally 
suggest,  toward  general  toleration  as  a  policy.  The 
truth  of  God's  Word  must,  he  believes,  prevail  in  the 
long  run  without  recourse  to  constraint.  So  long, 
therefore,  as  public  disorders  do  not  ensue,  the  "in- 
dependency of  the  primitive  Christians  ...  is  per- 
haps the  best." 3  It  is  manifest,  from  the  context 
of  this  passage  as  well  as  from  other  parts  of  his 
work,  that  the  philosopher  was  actuated,  in  suggest- 

the  clergy  for  the  same  reason  that  he  delegates  the  administration  of 
justice  to  the  judges  —  because  he  is  too  much  occupied  with  other 
business  to  take  proper  care  of  this. 

1  Chaps,  xliii  and  xlv  contain  some  especially  good  examples  of 
Hobbes's  method. 

2  Chap,  xlii  (Morley's  ed.,  p.  248).  8  Chap,  xlvii. 


300  POLITICAL  THEORIES 

ing  the  expediency  of  toleration,  less  by  interest  in 
the  cultivation  of  true  religion  than  by  thought  for 
the  freedom  of  inquiry  in  the  field  of  physical  science, 
whence  he  anticipated  some  such  progress  as  has 
actually  been  made.  In  other  words,  Hobbes  re- 
curred to  his  original  purpose,  of  securing  through 
absolute  sovereignty  the  external  and  physical  peace 
that  he  thought  essential  to  the  most  effective  intel- 
lectual activity. 

8.   Hobbes' s  Place  in  the  History  of  Political  Theory 

Hobbes  is  the  first  Englishman  to  present  a  system 
of  political  philosophy  that  can  'stand  among  the 
great  systems  of  history.  His  work  placed  him  at 
once  in  the  front  rank  of  political  thinkers  and  his 
theory  became  from  the  moment  of  its  appearance 
the  centre  of  animated  controversy  and  enormous 
influence  throughout  western  Europe.  So  skilfully 
did  he  blend  all  the  most  conspicuous  concepts  of 
current  political  thought  in  his  system  and  adapt 
them  to  his  ends,  that  philosophers  of  all  schools 
were  forced  to  a  recognition  and  discussion  of  his 
doctrine,  whether  by  way  of  approval  or  by  way  of 
condemnation.  The  warring  factions  of  Englishmen 
naturally  found  abundant  fuel  for  the  controversies 
that  had  long  divided  them  as  to  the  interrelation- 
ship of  monarch  and  Parliament,  of  state  and  church. 
But  it  was  the  special  achievement  of  Hobbes  to 
lift  the  debate  far  above  the  special  conditions  of 
English  politics  and  to  extort  the  attention  and  re- 


HOBBES  VERSUS  GROTIUS  301 

spect  of  the  Continental  philosophers  whose  thought 
lay  in  the  more  exalted  plane  of  abstract  science. 

For  twenty-five  years  before  he  wrote,  Protestant 
Europe  and  the  most  progressive  thinkers  of  all 
nations  had  recognized  Grotius  as  the  exponent  of 
ultimate  truth  in  political  theory;  but  Hobbes's 
system  was  an  undisguised  attack  on  that  of  Grotius 
in  method  and  in  substance.  The  rationalism  of  the 
Continental  philosopher,  radical  as  it  had  appeared  to 
his  contemporaries,  was  a  pale  and  empty  simulacrum 
beside  that  of  the  Englishman.  For  the  erudition 
with  which  Grotius  eked  out  his  reasoning,  Hobbes 
had  a  superb  contempt.  The  basis  of  moral  and  legal 
right  in  the  reason  he  freely  concedes,  but  he  answers 
far  differently  from  Grotius  the  vital  question,  "Whose 
reason  ? "  Not  from  the  sages,  philosophers  and 
orators  of  the  pagan  past  nor  from  the  saints  and 
theologians  of  the  Christian  era,  but  from  the  head 
of  the  state  alone  must  a  people  that  has  risen  above 
barbarism  seek  the  decisive  judgment  on  any  question 
of  duty,  whether  political,  moral  or  religious. 

In  setting  up  thus  the  will  of  the  state  as  the 
source  and  criterion  of  all  right,  Hobbes  not  only 
parts  company  with  Grotius  and  his  school,  but  even 
goes  beyond  Machiavelli  in  exalting  political  author- 
ity. For  while  Machiavelli  makes  politics  indepen- 
dent of  religion  and  morals  as  a  matter  of  practice, 
Hobbes  sets  politics  above  religion  and  morals  as 
a  matter  of  philosophic  theory.  No  more  extreme 
position  has  ever  been  taken  by  political  science 
than  that  involved  in  the  doctrine  of  Hobbes  that 


302  POLITICAL  THEORIES 

the  law  of  nature  and  of  nations  and  even  the  law 
of  God  have  binding  force  upon  the  individual  only 
through  the  will  of  the  political  sovereign. 

In  the  ethical  and  juristic  aspects  of  the  philosophy 
of  the  state  Hobbes  thus  gave  positive  and  complete 
form  to  doctrines  that  were  wholly  foreign  to  the 
systems  most  widely  prevalent  in  his  day.  His  more 
purely  political  theories  were  not  less  novel  and  not 
less  influential.  His  dogma  that  man  is  by  nature 
unsocial  and  the  enemy  of  his  kind  was  in  flat  con- 
tradiction of  the  Aristotelian  dogma  which  had  been 
the  accepted  foundation  of  social  and  political  science 
for  centuries.  His  doctrine  of  sovereignty  embodied 
a  conception  of  absolutism  in  the  state  more  far-reach- 
ing than  that  ascribed  by  mediaeval  ecclesiastics  to 
the  church.  But  notwithstanding  his  exaltation  of 
the  power  of  the  state  his  theory  was,  in  its  founda- 
tion, wholly  individualistic  and  rested  on  as  complete 
a  recognition  of  the  natural  equality  of  all  men  as 
was  ever  asserted  by  Milton  or  any  other  of  the 
revolutionary  theorists,  [it  was  for  the  purpose  of 
deriving  logically  from  a  mass  of  free  and  equal 
individuals  the  concept  of  an  omnipotent  state  that 
Hobbes  developed  that  most  distinctive  of  his  innova- 
tions, a  contract  of  individual  with  individual  through 
which  alone  the  state  could  come  into  being^  This 
new  form  of  the  old  contract  idea  was  destined  to  a 
distinguished  career  in  later  political  philosophy,  until 
it  reached  the  perfection  that  announced  its  extinction 
in  the  metaphysical  tangles  of  Kant  and  Fichte. 

The  trend  of  objective  history  in  England  prevented 


THE  INFLUENCE  OF  HOBBES          303 

the  ascription  to  Hobbes  of  the  full  measure  of  in- 
fluence that  he  actually  exercised.  His  political 
theory  was  naturally  under  a  cloud  during  the  reigns 
of  Charles  II  and  James  II,  when  the  theological 
basis  of  royal  absolutism  was  the  dominant  doctrine ; 
and  again,  when  the  Revolution  of  1688  completed  its 
work,  there  was,  of  course,  no  room  in  the  foreground 
for  any  system  which  had  been  devised  in  the  interest 
of  absolute  monarchy.  In  his  native  land  Hobbes 
came  to  his  own  in  respect  of  recognition  only  when, 
in  the  nineteenth  century,  it  was  perceived  by  certain 
logical  thinkers  that  his  principles  were  quite  as  well 
adapted  to  the  purposes  of  an  absolute  Parliament  as 
to  those  of  an  absolute  king.1  On  the  Continent,  how- 
ever, from  the  time  the  Leviathan  appeared,  its  teach- 
ings assumed  a  conspicuous  place  in  political  science. 
Not  only  the  rationalists,  but  also  the  adherents  of  the 
old  theological  school,  manifested  a  strong  sense  of 
their  dependence  on  the  Hobbesian  method  and 
formulas.  Grotius,  too,  continued  to  be  the  source  of 
much  inspiration ;  and  as  the  field  of  the  law  of  nature 
broadened  by  the  exploration  of  the  philosophers,  the 
influence  of  the  Dutch  thinker  became  paramount  with 
those  who  devoted  themselves  primarily  to  that  field. 
While  for  those  who  still  clung,  though  under  exist- 
ing conditions  with  ever  increasing  difficulty,  to  the 
study  of  more  purely  political  theory, Hobbes  continued 
for  a  century  to  be  the  leading  authority.  The  sub- 

1  The  revival  of  interest  in  the  Hobbesian  politics  was  due  to  the 
"  philosophical  radicals,"  James  Mill,  Molesworth  and  Grote.  Moles- 
worth  edited  the  first  complete  works,  1839-1845. 


304  POLITICAL  THEORIES 

mergence  of  the  Hobbesian  influence  on  the  Continent 
becomes  definitive  only  with  the  rise  of  that  liberalism 
under  Voltaire  and  Montesquieu  which  rejected  at  the 
outset  the  conception  of  absolute  power  in  any  state, 
whether  monarchic  or  popular.  But  the  inspiration 
of  this  movement  was  drawn  from  another  English 
source  —  that  of  the  Whig  revolutionists,  which  we 
shall  investigate  later.  For  the  present  our  task 
must  be  to  follow  the  Continental  philosophy  in  which 
the  conflicting  influences  of  Grotius  and  Hobbes  were 
manifest. 

SELECT  REFERENCES 


BLUNTSCHLI,  Geschichte,  pp.  119-129.  FRANCK, 
teurs  et  Publicistes,  XVII™  siMe,  pp.  367-409.  GRAHAM,  Eng- 
lish Political  Philosophy,  pp.  1-47.  Grote,  Minor  Works,  pp. 
57-72.  HOBBES,  Works,  ed.  by  Sir  William  Moles  worth,  esp. 
English  Works,  Vol.  II.  (Philosophical  Rudiments  concerning 
Government  and  Society),  Vol.  Ill  (Leviathan),  and  Vol.  IV 
(Hobbes's  Tripos).  JANET,  Histoire,  II,  146-185.  BOBERTSON, 
Hobbes,  esp.  chaps,  v-vii.  Tonnies,  Hobbes,  Leben  und  Lehre, 
pp.  197-226.  WOODBRIDGE,  The  Philosophy  of  Hobbes. 


CHAPTER  IX 

CONTINENTAL   THEORY  DURING  THE   AGE   OF 
LOUIS   XIV 

1.    General  Condition  of  Continental  Politics 

WHEN  England  was  just  at  the  climax  of  the 
internal  commotion  out  of  which  sprang  the  theories 
treated  in  the  last  two  chapters,  the  continental 
powers  of  western  Europe  reached  the  formal  con- 
clusion of  the  great  struggle  that  had  engaged  all 
their  energies  for  thirty  years.  By  the  Peace  of 
Westphalia,  in  1648,  a  new  order  in  the  politics  of 
Christendom  became  clearly  discernible,  and  .with 
the  Peace  of  the  Pyrenees,  in  1659,  which  put  an 
end  to  the  lingering  hostilities  between  France  and 
Spain,  the  chief  features  of  this  new  order  were  made 
distinct  and  definite. 

In  the  first  place,  differences  of  religious  creeds, 
which  had  been  the  ostensible  cause  of  the  outbreak 
of  the  Thirty  Years'  War,  ceased  henceforth  to  be 
even  nominally  a  source  of  political  activity.  The 
later  phases  of  that  contest  had  been  characterized 
by  the  cynical  obtrusion  of  purely  secular  motives 
among  the  continental  powers,  and  these  motives  were 
most  obvious  in  the  settlement.  Keligious  toleration 
was  not  indeed  formally  recognized  as  a  principle, 

VOL.  ii. — x  305 


306  POLITICAL   THEORIES 

but  Calvinism  was  put  on  an  equal  footing  in  Ger- 
many with  the  Catholic  and  Lutheran  creeds,  and 
this  fact  was  significant  of  the  theological  liberalism 
which  actual  conditions  were  forcing  to  the  front. 
With  the  Peace  of  Westphalia  the  formal  and  con- 
ventional preeminence  of  the  Papacy  in  European 
diplomacy  passed  away.  In  the  second  place,  the 
traditional  unity  and  dignity  of  the  imperial  author- 
ity received  at  this  time  a  fatal  blow.  Germany 
became  a  group  of  independent  states  and  the  power 
of  the  Emperor  rested  exclusively  on  the  extent  and 
resources  of  the  hereditary  Hapsburg  dominions.  At 
the  same  tune  the  decline  and  weakness  of  the 
Spanish  monarchy  became  so  conspicuous  that  the 
question  of  partitioning  its  possessions  began  soon 
to  engage  the  attention  of  the  powers  which  events 
had  raised  to  preeminence.  Of  these  powers  France, 
through  the  policy  of  Richelieu  and  Mazarin,  had 
come  out  of  the  prolonged  conflict  easily  the  first 
in  prestige,  and  with  the  assumption  by  Louis  XIV 
of  personal  control  of  the  government,  in  1661, 
begins  the  epoch  which  is  most  appropriately  asso- 
ciated with  that  monarch's  name. 

The  general  characteristics  of  the  age  of  Louis  XIV 
have  been  a  large  and  essential  part  of  every  philo- 
sophic view  of  modern  history.  Voltaire  presented 
them  with  consummate  literary  skill  less  than  a 
quarter  of  a  century  after  the  death  of  le  grand 
monarque.  Politically  it  was  an  age  of  monarchic 
absolutism,  with  a  basis  partly  national  but  tending 
always  to  become  dynastic.  Internal  administration 


THE  AGE  OF  LOUIS  XIV  307 


was  taken  bodily  into  the  hands  of  the  royal  court 
and  the  claims  to  local  autonomy  or  to  any  im- 
portant degree  of  local  privilege  were  ruthlessly 
suppressed.  Foreign  policy  was  aggressive  and  un- 
scrupulous, Machiavellian  in  the  principles  on  which 
the  claims  to  extension  of  dominion  were  asserted, 
and  Grot i an  in  the  principles  by  which  the  exercise 
of  sovereignty  over  lands  and  peoples  was  bandied 
from  monarch  to  monarch.  The  age  was  an  age,  in 
Harrington's  phrase,  of  men  and  not  of  laws.  Louis 
XIV  himself,  whatever  his  limitations,  was  not  the 
least  of  the  strong  men  of  his  day.  The  Great 
Elector  of  Brandenburg,  the  three  Charleses  of 
Sweden,  —  X,  XI  and  XII,  —  Peter  the  Great  of 
Russia,  and  finally  William  of  Orange,  were  contem- 
poraries of  the  French  king,  and  the  careers  of  all 
alike  reflected  the  tendencies  which  he  made  most 
conspicuous.  With  varying  degrees  of  success  and 
with  varying  degrees  of  enlightenment  in  their 
methods,  these  princes  all  strove  for  absolute  power 
within  their  dominions  and  for  extension  of  their 
territorial  possessions ;  and  the  basal  motive  in  each 
case  was,  not  so  much  the  promotion  of  their  creed 
or  the  welfare  of  their  subjects,  as  their  own  personal 
and  dynastic  aggrandizement. 

While  politics  turned  upon  the  rivalries  and  am- 
bitions of  these  rulers  and  Europe  was  distracted  by 
the  warfare  in  which  their  projects  were  wrought 
into  shape,  there  was  little  room  for  the  discussion 
of  political  theory.  Art,  science,  literature  and 
philosophy  did  indeed  receive,  as  is  usual  at  such 


308  POLITICAL  THEORIES 

epochs,  substantial  support  and  encouragement  from 
the  princes,  who  instinctively  sought  to  embellish 
their  courts  with  the  products  of  genius.  It  was  a 
period  of  notable,  even  marvellous,  advance  in  physi- 
cal and  mathematical  science,  and  the  philosophers 
of  the  chief  nations  maintained  an  harmonious  co- 
operation in  their  common  pursuit  without  reference 
to  the  wars  that  divided  their  respective  govern- 
ments.1 But  in  political  science  the  list  of  names 
on  the  Continent  that  rise  above  the  level  of  the 
merest  commonplace  is  exceedingly  short:  Spinoza, 
Bossuet  and  Pufendorf  —  these  are  practically  all. 
Of  these  three  the  ethics  of  politics  rather  than 
politics  proper  is  the  central  theme  of  interest  and 
discussion.  As  in  all  times  of  political  storm  and 
stress,  the  chief  effort  of  philosophy  was  to  get  some 
basis  for  a  moral  judgment  on  the  conditions  against 
which  it  is  the  inevitable  tendency  of  the  philosophic 
temperament  to  protest.  Spinoza  and  Pufendorf 
accordingly  took  up  and  carried  out  to  further  appli- 
cation the  rationalistic  systems  of  political  ethics  to 
which  Grotius  and  Hobbes  had  given  such  widespread 
currency;  while  Bossuet,  the  ecclesiastic-courtier,  re- 
curred to  the  familiar  methods  of  Christian  theology, 
and  justified  the  regime  of  his  Bourbon  master  by  the 
precept  and  example  of  the  Israelitish  Jehovah. 

Among  the  nations  of  northern  Europe  when 
the  age  of  Louis  XIV  began,  the  most  important 
exception  to  the  monarchic  form  of  government  was 
that  of  the  United  Provinces  of  the  Netherlands, — - 

1  Cf.  Voltaire,  Siecle  de  Louis  XIV,  chap,  xxxiv. 


THE  UNITED  PROVINCES  309 

the  flourishing  little  aristocratic  republic  which  was 
completing  its  first  century  of  well-earned  inde- 
pendence. In  all  but  in  name,  the  exceptional 
character  of  this  government  was  lost  in  the  turmoil 
which  attended  the  aggressive  policy  of  the  French 
king  and  the  aspirations  of  the  House  of  Orange,  but 
the  tradition  of  a  fairly  wide  intellectual  and  theo- 
logical toleration  persisted,  at  least  in  the  great  com- 
mercial centres  of  population,  even  after  the  Prince 
of  Orange  became  to  all  intents  and  purposes  the 
monarchic  ruler  of  the  United  Provinces.  Much  the 
same  influence  which  produced  the  work  of  Grotius 
in  the  first  half  of  the  century  contributed  to  give 
character  to  the  work  of  Spinoza  in  the  latter  half. 
Dutch  political  and  commercial  institutions  were 
nearest  of  all  continental  nations  to  those  of  Eng- 
land ;  the  Dutch  ruler  eventually  occupied  the  Eng- 
lish throne  and  brought  England  fully  into  the 
complications  of  continental  warfare ;  and  it  was  a 
Dutch  philosopher  through  whom  the  greatest  system 
of  rationalistic  ethical  and  political  thought  that 
England  produced  in  the  seventeenth  century,  was 
introduced  into  the  current  of  speculation  on  the 
Continent.  Our  examination  of  the  few  figures  who 
stood  conspicuous  in  the  age  of  Louis  XIV  in  the 
field  of  politics  may  most  appropriately  begin,  there- 
fore, with  the  philosophy  of  Spinoza. 

2.    Spinoza 

This  gifted  thinker,  who  was  born  when   Hobbes 
was  forty-four  years  of  age  yet  preceded  him  to  the 


310  POLITICAL  THEORIES 

grave,1  differed  widely  from  the  Englishman  in  the 
metaphysical  foundations  of  his  doctrine,  but  reached, 
nevertheless,  many  identical  conclusions  in  the  politi- 
cal and  ethical  field.  Spinoza's  philosophy  was  in  a 
very  large  measure  determined  by  the  conditions  of 
his  life.  His  family  were  Portuguese  Jews,  living  in 
Holland,  which  was  at  this  time  the  securest  retreat 
in  Europe  for  the  victims  of  civil  and  religious  op- 
pression. Spinoza's  earliest  exhibition  of  intellectual 
activity  brought  him  into  disgrace  with  the  orthodox 
of  his  own  race,  and  at  the  age  of  twenty-four  he  was 
cut  off  from  the  synagogue  and  made  an  outcast 
from  the  Jewish  community.2  He  took  up  his  resi- 
dence with  friends  who  were  themselves  adherents  of 
a  Protestant  sect  that  was  under  the  ban  of  the 
Dutch  ecclesiastical  order,  and  thus  for  all  the  rest  of 
his  short  life  he  was  immediately  conscious,  both 
through  his  own  experience  and  through  the  situation 
of  his  friends,  of  the  pressure  of  religious  intolerance. 
During  his  lifetime,  moreover,  the  Dutch  Eepublic 
passed  through  vicissitudes  that  brought  its  peculiar 
institutions  into  earnest  and  widespread  discussion. 
It  is  not  to  be  wondered  at,  therefore,  that  the  two 
most  characteristic  features  of  Spinoza's  political  phi- 
losophy should  have  been  a  plea  for  religious  freedom 
and  a  demonstration  of  the  scientific  and  practical 
excellence  of  the  aristocratic  republic  as  a  form  of 
governmental  organization. 

1  Spinoza  was  born  in  1632  and  died  in  1677;  Hobbes's  life  ex- 
tended from  1588  to  1679. 

2  Pollock,  Spinoza,  2d  ed.,  pp.  15  et  seq. 


SPINOZA  ON  NATURAL  RIGHT  311 

In  its  ultimate  character  the  philosophy  of  Spinoza 
was  pantheistic.  All  existence  was  to  him  a  unity, 
which  might  be  called  God  or  might  be  called  nature, 
according  to  the  standpoint  of  the  speaker.  iXLn  every 
special  form  of  existence  was  manifested  a  common 
principle,  namely,  power  (potentid) ;  that  is  to  say, 
in  the  very  fact  that  anything  existed  was  expressed 
a  power  by  virtue  of  which  it  existed,  and  God  or 
nature  was  merely  the  name  for  the  totality  of  powers 
through  which  things  were  as  they  were.  But  Spi- 
noza, in  developing  his  philosophy  from  this  dogma, 
was  not,  like  Hobbes,  materialistic.  On  the  contrary, 
he  regarded  the  essence  of  all  things  to  be  in  what  is 
known  to  us  through  reflection  rather  than  what  is 
known  to  us  through  the  senses.  But  whatever  the 
divergence  shown  by  Spinoza  from  Hobbes  in  first 
principles,  the  similarity  of  the  two  philosophers' 
systems  becomes  obvious  as  soon  as  the  border  line  of 
ethics  and  politics  is  approached.  With  the  younger 
as  with  the  older  thinker,  natural  right  (ius  naturale) 
is  nothing  but  natural  power ;  man,  like  every  other 
form  of  existence,  has  by  nature  no  more  controlling 
motive  or  guide  for  his  actions  than  self-interest,  and 
the  ultimate  demand  of  self-interest  is  self-preserva- 
tion ;  philosophically,  man's  passions  are  as  much  a 
part  of  his  being  as  his  reason  and  are  quite  as  ap- 
propriate means  for  securing  his  ends ;  the  so-called 
social  virtues  are  merely  conventions  through  which 
individuals  seek  their  particular  good,  and  hence  the 
observance  of  contracts,  for  example,  has  never  any 
more  substantial  guarantee  than  that  it  is  the  lesser 


312  POLITICAL  THEORIES 

of  two  evils.  From  these  ideas  of  social  ethics  fol- 
lows the  obvious  conclusion  that  the  state  is  merely 
an  arrangement  through  which  a  multitude  of  indi- 
viduals seek  their  respective  interests,  and  particularly 
that  advantage  which  lies  in  the  security  of  their 
lives  through  general  peace  and  order.  The  essence 
of  the  state  is  a  supreme  power  that  is  adequate  to 
the  task  of  compelling  individuals,  through  hope  and 
fear,  to  conform  to  its  commands.  Such  power  can 
exist  only  through  the  union  of  the  powers  of  many 
individuals,  and  the  sovereign  is  supreme  only  because 
and  so  far  as  its  strength  is  the  sum  of  the  forces 
that  are  embodied  in  the  individuals  who  form  the 
community.1 

Spinoza  thus,  like  Hobbes,  derives  an  omnipotent 
state  from  the  mere  addition  of  the  powers  of  a 
number  of  very  far  from  omnipotent  individuals. 
In  Spinoza's  theory,  however,  there  is  no  such  at- 
tention paid  as  in  Hobbes' s  to  the  specific  terms  on 
which  individuals  unite  to  make  the  state.  The 
elaborate  pains  taken  by  Hobbes  to  formulate  the 
terms  of  the  contract  so  as  to  leave  the  sovereign 
absolute  have  no  counterpart  in  the  later  philosophy. 
Spinoza  assumes  a  pact  through  which  the  state 
comes  into  existence,  but  apparently  attaches  no 
importance  to  its  philosophic  character  and  treats 

1  These  ideas  are  summarized  in  the  Tractatus  Politicus,  cap.  i-iii. 
They  are  developed  fully  in  the  Tractatus  Theologico-Polilicus  (1670) 
and  in  the  Ethics.  The  Tractatus  Politicus  and  the  Ethics  were  pub- 
lished in  1677,  after  the  death  of  Spinoza.  The  Ethics  had  been  writ- 
ten many  years  before,  but  the  Tractatus  Politicus  was  in  course  of 
preparation  when  he  died. 


SPINOZA  ON  LIBERTY  313 

it  as  not  distinct  from  any  other  promise  or  pledge 
between  man  and  man.  The  care  which  Hobbes 
took  to  define  the  terms  of  the  social  contract  was 
due  to  his  desire  to  give  to  every  act  of  resistance 
to  the  sovereign  the  stigma  of  "unjust,"  which 
he  defined  with  this  end  in  view.  Spinoza  avoids 
the  sophistry  of  the  English  philosopher,  and  while 
agreeing  with  him  in  holding  that  justice  and  in- 
justice have  existence  only  in  the  civil,  not  in  the 
natural  state,  nevertheless  neglects  Hobbes' s  clever 
distinction  between  justice  and  equity  and  treats 
these  two  concepts  in  the  more  usual  way,  as  sub- 
stantially synonymous.1 

This  difference  between  the  two  philosophers  has  a 
close  relation  to  the  far-reaching  difference  in  their 
views  on  sovereignty  and  liberty.  The  preoccupa- 
tion of  Hobbes  was,  as  we  have  seen,  to  establish 
the  absolute  and  unassailable  nature  of  sovereignty ; 
Spinoza,  on  the  other  hand,  seeks  with  the  utmost 
care  to  secure  a  field  for  individual  liberty.  The 
scant  and  rather  ridiculous  content  assigned  to  in- 
dividual liberty  by  Hobbes  has  been  noted  above.2 
Spinoza  goes  so  far  as  to  name  liberty  as  the  supreme 
end  of  the  state.  He  means  here,  however,  merely 
that  the  state  must  promote  a  rational  rather  than 
a  bestial  life  in  men,  and  he  has  previously  defined 
liberty  as  consisting  in  life  according  to  the  reason 
rather  than  according  to  the  passions.  But  the 

1  Ante,  p.  282.     Spinoza,  Tractatus  Theologico-Politicus,  cap.  xvi, 
sec.  39. 

2  Ante,  p.  287. 


314  POLITICAL  THEORIES 

precise  scope  of  the  liberty  which  is  essential  in  the 
state  is  arrived  at  by  a  strict  logical  application  to 
sovereignty  of  Spinoza's  philosophical  first  principles. 
Like  every  other  form  of  existence,  the  state  has 
rights,  he  argues,  to  just  the  extent  that  it  has 
power,  and  moreover,  its  power  is  exercised  always 
with  reference  to  the  primary  end  of  self-preserva- 
tion. To  say,  therefore,  that  the  sovereign  has  abso- 
lute and  unlimited  right,  that  is,  absolute  and  un- 
limited power,  is  absurd ;  for  that  would  be  to 
include  within  its  rights  acts  tending  to  destruction 
rather  than  to  preservation,  and  this  could  only  be 
true  in  the  sense  that  a  man  has  a  right  to  be  crazy.1 
By  universal  principles  of  natural  right,  therefore,  the 
supreme  power  of  a  state  is  limited  to  a  definite  range 
of  acts,  namely,  such  as  make  for  the  welfare  of  all 
its  members,  such  as  can  actually  determine  individ- 
uals' conduct  through  appeal  to  hope  and  fear, 2  and 
such  as  will  not  arouse  anger  and  resistance  in  the 
majority  of  the  subjects. 

Of  the  specific  privileges  thus  left  open. to  indi- 
viduals even  in  the  civil  state,  that  to  which  Spinoza 
devotes  most  attention  is  freedom  of  thought  and  of 
expression.  His  TJieologico-Political  Treatise  has  for 

1  Id  nullo  alio  sensu  poterimus  concipere  nisi  quo  quis  diceret 
hominem  iure  posse  insanire  et  delirare.  —  Tractatus  Politicus,  III,  8. 

2  There  are  some  things,  Spinoza  holds,  that  no  man  can  be  made 
to  do  by  either  rewards  or  penalties;   for  example,  to  believe  that 
God  does  not   exist;   to  be  a  witness  against  himself;   to  torture 
himself ;  to  kill  his  parents.     An  individual  who  is  destitute  of  hope 
or  fear  and  cannot  be  influenced  in  his  conduct  by  either,  is,  according 
to  Spinoza,  wholly  outside  of  the  civil  state  and  in  the  mere  state  of 
nature. — Tractatus  Politicus,  III,  8. 


SPINOZA  ON  LIBERTY  315 


its  aim  the  demonstration  that  such  freedom  not 
only  is  compatible  with  the  maintenance  of  religious 
and  political  institutions,  but  is  even  indispensable 
to  the  stability  of  these  institutions.  The  proof  of 
his  thesis  from  Revelation  consists  in  a  very  close 
and  learned  examination  of  the  Scriptures  on  lines 
now  familiar  as  the  higher  criticism ;  the  proof  from 
reason  turns  on  the  full  development  and  application 
of  the  principles  outlined  above.  That  the  individual 
should  give  up  to  the  sovereign  the  control  of  his 
thoughts  is,  from  the  nature  of  the  case,  impossible. 
To  confine  his  speech  to  what  the  sovereign  com- 
mands, is  hardly  more  possible ;  for,  Spinoza  says, 
not  even  the  wisest  can  hold  their  tongues,  and  it  is 
a  universal  vice  of  men  to  tell  their  ideas  to  others 
even  when  silence  is  needful.1  Because  of  this  an 
attempt  to  exercise  an  absolute  control  over  expres- 
sion must  inevitably  produce  dissent  and  irritation 
and  thus  imperil  the  existence  of  the  state.  The 
sovereign,  therefore,  by  virtue  of  the  primary  law  of 
self-preservation,  must  be  denied  the  possession  of  any 
absolute  right  in  this  matter.  Its  power  and  its  right 
extend  only  to  the  prevention  of  the  expression  of 
ideas  which  endanger  directly  the  existence  of  the 
state;  that  is,  those  which  involve  a  violation  of 
the  social  contract.2  Outside  of  these,  whatever  the 

1  ...  nam  nee  peritissimi,  ne  dicam  plebem,  tacere  sciunt.     Hoc 
hominum  commune  vitium  est,  consilia  sua,  etsi  tacito  opus  est,  aliis 
credere.  —  Tractatus  Theologico-Politicus,  xx,  8,  9. 

2  Such,  for  example,  as  these :  that  the  sovereign  is  not  supreme ; 
that  promises  ought  not  to  be  kept;  that  every  man  ought  to  live 
entirely  as  he  pleases. — Tractatus  Theologico-Politicus,  xx,  21. 


316  POLITICAL  THEORIES 

inconveniences  that  attach  to  freedom  of  thought 
and  expression,  whether  in  reference  to  secular  or  in 
reference  to  religious  matters,  such  freedom  must  be 
left  to  the  individual  for  the  sake  of  the  greater 
advantage  which  accrues  to  the  state.  It  is  merely 
a  matter  of  the  choice  of  evils,  and  the  power  and 
right  of  the  state  are  determined  by  the  fact  that  the 
lesser  evil  lies  in  liberty. 

There  is  much  in  Spinoza's  plea  for  liberty  and 
toleration  that  suggests  the  thought  of  Milton  on 
similar  subjects.1  The  distinction  that  is  most  obvi- 
ous between  them  is  that  Spinoza  looks  at  the  matter 
from  the  standpoint  of  the  state,  while  Milton  is 
chiefly  concerned  with  the  individual.  To  the  Jewish 
philosopher  the  conclusive  argument  is  that  freedom 
of  thought  and  expression  are  essential  to  the  pres- 
ervation and  welfare  of  the  commonwealth,  while  to 
the  Englishman  this  freedom  has  for  its  permanent 
justification  the  guarantee  it  carries  of  the  supreme 
excellence  of  the  human  reason  and  the  dignity  of 
manhood. 

The  particular  forms  of  government  and  their 
respective  advantages  and  disadvantages  are  the 
chief  subject  of  Spinoza's  Political  Treatise.  In  this 
is  fully  developed  his  preference  for  popular  over 
monarchic  institutions.  Monarchy,  indeed,  he  proves 
to  be  impossible,  since  no  single  human  being  can 
actually  possess  and  exercise  the  power  implied  in 
sovereignty.  What  are  called  monarchies  are,  he 
holds,  in  fact  aristocracies.  He  discusses  at  length, 

1  Ante,  p.  245. 


SPINOZA  ON  GOVEKNMENT  317 

however,  the  best  method  of  organization  and  action 
in  each  of  these  different  forms,  with  many  shrewd 
observations  and  ingenious  suggestions  in  reference 
to  practical  politics.  Throughout  his  discussion  he 
adheres  with  the  utmost  consistency  to  his  funda- 
mental principle  that  man  acts  only  through  self- 
interest  and  under  the  impulse  of  hope  or  fear.  This 
gives  to  his  politics  a  distinctly  Machiavellian  tone, 
and,  indeed,  his  admiration  for  the  Italian  is  uncon- 
cealed.1 His  theory  as  to  the  organization  and  opera- 
tion of  aristocracies  gives  evidence  of  a  thorough 
familiarity  with  the  institutions  of  the  Netherlands 
and  indicates  that  he  had  much  in  mind  the  improve- 
ment of  existing  conditions  there.  For  radical  de- 
mocracy he  apparently  had  less  sympathy  than  for 
aristocracy,  though  he  believed  that  in  democracy, 
more  than  in  either  of  the  other  forms,  the  supreme 
power  was,  in  the  strict  sense,  absolute ;  that  is,  the 
rule  of  a  numerical  majority,  which  was  the  essence 
of  democracy,  involved  the  exercise  of  a  truly  over- 
whelming power,  and  thus,  according  to  his  idea,  the 
possession  of  unquestionable  right.  But  Spinoza's  de- 
tailed treatment  of  democracy  is  lacking,  since  death 
overtook  him  before  his  Political  Treatise  was 
finished. 


1  Despite  the  very  close  relation  of  his  general  philosophy  to  that 
of  Hobbes,  the  latter  is  barely  referred  to,  in  a  single  note  (Tractatus 
Theologico-Politicus,  cap.  xvi,  sec.  34),  and  in  this  place  an  opinion  is 
attributed  to  the  Englishman  which  is  far  from  anything  he  ever  ex- 
pressed. Machiavelli,  on  the  other  hand,  is  in  a  number  of  places 
referred  to,  and  always  in  terms  of  the  highest  admiration. 


318  POLITICAL  THEORIES 

3.   Pufendorf 

Whichever  side  be  taken  on  the  much-mooted 
question  as  to  whether  this  prolific  and  unquestion- 
ably talented  German  philosopher  made  any  dis- 
tinctly original  contribution  to  political  science,  there 
can  be  no  doubt  that  his  works  had  a  wide  vogue  and 
much  influence  with  his  own  and  the  succeeding 
generation.  Born  in  the  same  year  with  Spinoza 
and  Locke  — 1632 — his  maturity  belonged  to  the 
epoch  at  which  the  antithesis  of  the  systems  of  Gro- 
tius  and  Hobbes  in  social  and  political  philosophy 
was  the  most  conspicuous  fact  in  intellectual  circles 
where  rationalism  was  dominant.  Pufendorf's  sys- 
tem reveals  most  distinctly  the  influence  of  his  two 
great  predecessors,  and  in  general  it  may  be  said  to 
be  directed  toward  a  conciliation  of  their  conflicting 
views.  Where  his  philosophy  is  concerned  with  the 
concepts  of  ethics,  he  clearly  leans  to  the  principles 
of  Grotius;  where  he  takes  up  more  purely  politi- 
cal topics,  the  Hobbesian  doctrine  assumes  the  more 
conspicuous  place.  But  Pufendorf  criticises,  selects, 
rejects  and  modifies  with  great  energy  and  acuteness, 
and  his  work,  De  lure  Naturce  et  Gentium?  published 
first  in  1672,  presents  in  clear  and  coherent  form  the 
whole  body  of  social  and  political  thought  which  had 
been  produced  so  largely  through  the  stimulus  of 
Grotius  and  Hobbes. 

1 1  have  used  the  Latin  edition  of  Frankfort  and  Leipzig,  1759, 
and  the  English  version  of  Kennett,  4th  ed.,  1729.  An  abridgment 
of  the  full  work  was  published  by  Pufendorf  under  the  title  De  Officio 
Hominis  et  Civis. 


THE  STATE  OF  NATURE  319 


The  work  is  at  the  same  time  more  comprehensive 
and  more  systematic  than  the  De  lure  Belli  ac  Pads 
or  the  Leviathan,  avoiding  the  tiresome  pagan  erudi- 
tion of  Grotius  and  the  lengthy  Scriptural  exegesis 
of  Hobbes.  By  common  consent  of  those  who  were 
later  adepts  in  the  system  of  thought  connoted  by 
the  term  "  natural  law,"  Pufendorf  was  the  first  to 
give  to  it  the  form  and  name  of  a  science.1 

The  starting-point  of  Pufendorf,  so  far  as  concerns 
the  social  and  political  elements  of  his  philosophy, 
is  the  "  state  of  nature."  This  term,  he  holds,  may 
properly  be  used  in  either  of  two  senses:  first,  as 
designating  the  residual  attributes  of  the  concept 
"humanity,"  when  abstraction  is  made  of  the  quali- 
ties and  conditions  which  are  due  to  civilization  and 
enlightenment ;  and  second,  as  designating  an  actual 
condition  which  has  prevailed  at  some  time  among  each 
of  the  various  races  of  men,  though  not  necessarily 
among  all  at  the  same  time.  In  either  case  the  state 
of  nature  means  a  condition  in  which  there  is  no  civil 
or  political  organization,  though  in  a  qualified  sense 
the  term  may  be  applied  to  the  relation  of  families 
or  states  that  have  no  common  superior.2  This  state 
of  nature  in  the  strict  sense  is  a  wretched  and  intol- 
erable condition ;  but  against  the  doctrine  of  Hobbes, 
Pufendorf  holds  that  the  state  of  nature  is  character- 
ized not  by  indiscriminate  war  but  by  general  peace ; 3 
for  men  are  rational  beings  from  their  creation  and 

1  Cf.  Franck,  Reformateurs  et  PuUicistes,  XVII™  slide,  p.  336; 
Janet,  II,  235. 

a  De  lure  Nature  et  Gentium,  II,  ii,  4.  8  II,  ii,  5  et  seq. 


320  POLITICAL  THEORIES 

the  dictates  of  reason  guide  them  as  well  before  as 
after  the  formation  of  society  and  commonwealth. 
The  law  of  nature,  therefore,  which  means  merely 
the  dictates  of  right  reason,  prevails  in  the  state  of 
nature  and  operates  to  make  men  refrain  from  recip- 
rocal injury,  respect  one  another's  property,  and  keep 
their  promises  and  contracts. 

To  the  detailed  exposition  of  the  law  of  nature 
Pufendorf  devotes  an  important  part  of  his  work. 
In  his  definition  of  the  term  he  follows  Grotius :  the 
law  of  nature  is  the  dictate  of  right  reason  de- 
termining what  is  right  and  wrong  in  human  con- 
duct. But  Pufendorf,  without  fully  and  frankly 
adopting  the  view  of  Hobbes  that  self-interest  is  the 
working  principle  of  the  law  in  its  immediate  applica- 
tion, leans,  nevertheless,  very  markedly  toward  that 
view.1  The  first  law  of  nature,  he  declares,  as 
Hobbes  had  done,  is  that  a  pacific  and  social  life 
must  be  maintained.  The  various  institutions  of 
civilized  society  are  considered  at  length  and  tested 
in  their  relation  to  this  fundamental  principle. 
Private  property  is  shown  to  be  necessary  to  social 
life  and  to  rest  primarily  upon  a  virtual  contract 
between  the  holder  and  the  rest  of  the  community ; 2 
polygamy  is  considered  doubtful  from  the  point  of 
view  of  the  law  of  nature,  though  its  tendency  to 
produce  a  burdensome  proletariat  condemns  it  on  the 
ground  of  expediency,  if  not  on  the  ground  of  ab- 
stract right ; 3  slavery,  explained  as  based  on  con- 
tract, is  held  to  be  in  accord  with  natural  law,  and 

1  Cf.  II,  iii,  16  and  17.  2  IV,  iv.  8  VI,  i,  17  and  19. 


THE  LAW  OF  NATURE  321 

to  be  on  the  whole  desirable,  since  it  also,  like  monog- 
amy, operates  to  reduce  the  number  of  idle  men  — 
thieves,  vagabonds  and  sturdy  beggars.1  Through- 
out his  detailed  exposition  of  the  law  of  nature, 
Pufendorf  in  general  follows  very  closely  the  lines 
of  Grotius's  doctrine,  but  at  one  point  of  fundamental 
importance  he  abandons  entirely  the  elaborately 
developed  theory  of  the  Dutch  philosopher  and  puts 
himself  on  Hobbesian  ground.  This  point  is  the  dis- 
tinction between  the  ius  naturce  and  the  ius  gentium. 
Pufendorf  rejects  the  idea  of  a  law  of  nations  consist- 
ing in  the  practices  of  all  or  the  best  nations  and 
deriving  thence  a  binding  force  for  mankind,  and 
adopts  substantially  the  dictum  of  Hobbes,  that  "  the 
law  of  nature  and  the  law  of  nations  is  the  same 
thing."  2 

The  life  in  a  state  of  nature  according  to  natural 
law,  as  conceived  by  Pufendorf,  would  appear  to  be 
adequate  to  all  the  needs  of  humanity  and  to  leave 
no  reason  for  social  and  political  institutions.  But 
unfortunately  the  majority  of  men  tend  to  live  by 
impulse  rather  than  by  reason  and  the  laws  of  nature 
are  respected  in  their  true  spirit  by  few.  Hence 
for  the  majority  of  men,  though  not  for  the  few,  the 
transition  to  the  civil  state  becomes  necessary.3  As 
Luther  and  Melanchthon  had  explained  that  the 

1  Pufendorf  says  that  the  absence  of  slavery  among  Christian 
nations  must  be  regarded  as  one  of  the  causes  "  quare  tanta  colluvies 
furum,  vagabundorum  et  validorum  mendicorum  passim  occurrat." 
And  he  approves  of  workhouses — "  ergastula,  in  quibus  ignavis  ne- 
bulonibus  laboraridi  necessitas  afferetur."  —  VII,  i,  4. 

2  II,  iii,  23.  »  VII,  i,  7,  11. 

VOL.  II.  — T 


322  POLITICAL  THEORIES 

commonwealth,  with  its  coercive  function,  was  essen- 
tial not  on  account  of  true  Christians,  but  on  account 
of  those  who  lacked  the  Christian  character,  so 
Pufendorf  explains  it  as  essential,  not  for  philosophers 
who,  like  himself  presumably,  could  live  a  purely 
rational  life,  but  for  the  rabble  of  inferior  folk.  His 
exposition  of  the  unpleasant  consequences  of  the 
selfish  propensities  of  most  men  in  the  state  of 
nature  runs  pretty  close  to  the  chief  features  of 
Hobbes's  helium  omnium  contra  omnes,  despite  Pufen- 
dorf's  earlier  insistence  that  the  characteristic  of  that 
state  is  peace  rather  than  war.1  The  desire  to  escape 
the  evils  of  this  condition  is  the  immediate  motive 
for  the  formation  of  the  commonwealth,  and  the  only 
possible  means  to  effect  this  transition  is,  Pufendorf 
holds,  by  contract. 

The  treatment  of  the  procedure  through  which  the 
transition  from  the  state  of  nature  to  the  civil  state 
is  effected,  is  one  of  the  best  parts  of  Pufendorf's 
philosophy.  It  particularly  illustrates  his  inclination 
to  effect  a  conciliation  of  Grotius  and  Hobbes.  He 
makes  explicit  what  we  have  seen  was  implied,  though 
not  expressed,  by  Grotius,  that  the  social  instinct  in 
man  is  to  be  held  accountable  for  the  formation  of 
society,  while  a  deliberate  act  of  will  through  contract 
must  explain  the  origin  of  the  state.2  The  social 
instinct  may  be  satisfied  by  the  "primary  societies  " 
—  family,  religious  bodies,  commercial  organizations, 

1  Compare  VII,  i,  7  with  II,  ii,  9. 

2  Ante,  p.  180.     See  Pufendorf,  VII,  i,  3 :  "  Ex  adpetitu  societatis 
non  statim  sequitur  adpetitus  civitatis." 


A  DUAL  CONTRACT  323 

etc. ;  but  for  the  formation  of  a  civil  society  or  a 
commonwealth  there  must  be  a  union  of  wills  effected 
through  contract.  Moreover,  Pufendorf  holds  that  a 
twofold  contract  is  necessary.  Both  the  social  contract 
which  Hobbes  had  described  and  the  governmental 
contract  which  had  been  the  foundation  of  all  the 
anti-monarchic  theories,  are  essential  to  the  complete 
philosophy  of  the  origin  of  commonwealths.  The 
process  as  he  explains  it  is  this 1 :  first  each  individual 
contracts  with  each  to  form  a  lasting  society  and  to 
determine  by  majority  vote  what  arrangements  shall 
be  made  for  the  common  safety  and  welfare.  Then 
a  vote  is  taken  as  to  what  form  of  government  shall 
be  adopted,  and  those  who  have  joined  the  society 
conditionally  on  the  adoption  of  a  particular  form  are 
at  liberty  to  withdraw  if  their  preference  is  not 
actually  carried  into  effect.  Finally,  a  second  con- 
tract is  made  between  the  designated  bearers  of 
governmental  power  on  the  one  hand,  and  the  rest  of 
the  community  on  the  other,  —  the  former  agreeing 
to  promote  the  common  welfare  and  the  latter  to 
yield  faithful  obedience.  This  process  is  held  by 
Pufendorf  to  be  not  only  a  logical  conception  that  is 
indispensable  to  the  philosophical  theory  of  political 
institutions,  but  also  a  very  probable  conjecture  as  to 
the  actual  fact  in  the  history  of  political  societies. 

As  to  the  nature  and  attributes  of  the  sovereignty 
which  is  created  by  these  contracts,2  Pufendorf  follows 
Grotius  and  not  Hobbes.     As  against  the  latter  he 
insists  that  the  sovereign  is  supreme  (summus)  but  J 
i  VII,  ii,  7.  2  VII,  vi. 


324  POLITICAL  THEORIES 

not  absolute  (absolutus).  Limitation  is  entirely  com- 
patible with  the  conception  of  sovereignty.  The  laws 
of  God  and  of  nature  are  always  operative  to  restrict 
the  exercise  of  power;  custom  and  ancient  usage 
determine  practically  the  methods  of  sovereign  action ; 
the  existence  of  a  parliament  by  the  side  of  a  monarch, 
with  the  right  of  participation  in  legislation,  does  not 
detract  from  the  sovereignty  of  the  monarch.  Sover- 
eignty is,  in  short,  restricted  by  the  end  for  which  it 
was  conferred  by  the  original  contract ;  for  this  end 
was  the  common  welfare  of  the  parties  to  the  pact, 
and  only  such  powers  are  ascribable  to  the  sovereign 
as  contribute  to  this  end.  What  means  are  requisite 
to  this  end  at  any  given  time  and  place,  must  indeed 
be  decided  by  the  sovereign ;  but  his  choice  is  limited 
to  such  means  as  would  be  judged  suitable  and  proper 
by  a  sane  man  (per  sanum  hominem),  and  such  as  are 
conformable  to  the  law  of  nature. 

Pufendorf  s  sovereignty  becomes  thus  in  the  last 
analysis  as  indistinct  and  elusive  a  concept  as  that  of 
Grotius.  To  the  philosopher  possessed  with  the  idea 
that  there  is  a  standard  of  conduct  for  both  common- 
wealths and  individuals  in  a  natural  law,  whose 
content  is  discernible  b^  only  the  most  enlightened 
intellects,  the  Hobbesian  dogma  of  absolute  sovereignty 
is  impossible  of  acceptance.  The  "sane  man"  whose 
judgment  Pufendorf  sets  up  as  the  test  for  the  pro- 
priety of  sovereign  actions  means  really  the  philos- 
opher himself  and  other  writers  on  the  law  of  nature 
who  agree  with  him.  Hobbes  alone  of  the  seventeenth- 
century  thinkers  was  able  to  make  the  full  and  frank 


SAMUEL  PUFENDOBF  325 

concession  that  the  political  sovereign  was  a  law  unto 
itself  and  was  independent,  theoretically  as  well  as 
practically,  of  the  judgment  of  the  learned  world. 

But  whether  sustaining  the  Hobbesian  or  the 
Grotian  thesis  on  any  particular  point,  Pufendorf  in 
his  general  spirit  is  clearly  enough  a  representative  of 
the  rationalizing  school  of  political  philosophy,  which 
holds  that  the  source  and  criterion  of  political  author- 
ity must  be  looked  for  and  detected  among  men  and 
must  not  be  referred  blindly  and  mystically  to 
Divinity.  He  devotes  much  attention  to  pointing  out 
the  defects  of  the  obscurantist  doctrine  which  was 
prevalent  among  the  mediocre  theologians  of  the  day. 
The  most  conspicuous  exponent  of  the  ideas  which 
pervaded  such  circles  was  Bossuet,  the  Bishop  of 
Meaux,  in  France.  Through  him  the  dogma  of  a 
peculiar  sanctity  pertaining  to  sovereign  monarchs 
and  emanating  from  God  himself  was  put  in  the 
most  effective  form  and  the  form  which  made  the 
best  appeal  possible  to  the  thought  of  the  time.  To 
this  sort  of  doctrine,  therefore,  we  must  next  devote 
our  attention. 

4.   Bossuet 

Commanded  by  Louis  XI Y  to  undertake  the  edu- 
cation of  the  Dauphin,  this  bishop-courtier  embodied 
what  he  conceived  to  be  the  proper  political  system 
for  the  use  of  his  pupil  in  a  work  entitled  Politics 
as  derived  from  the  very  Words  of  the  Holy  Scrip- 
tures.1 That  the  doctrines  of  this  work  expressed 

1  La  Politique  tire'e  des  propres  paroles  de  V Venture  sainte. 


326  POLITICAL  THEORIES 

the  mature  judgment  of  the  writer  seems  doubtful ; l 
but  there  is  no  doubt  that  they  were  in  exact  accord 
with  the  spirit  in  which  the  grand  monarque  admin- 
istered his  government  and  regulated  the  conduct  and 
the  expressions  of  his  court  and  his  subjects  in  gen- 
eral. Bossuet  becomes  by  virtue  of  this  work  the 
chief  exponent  of  the  theory  of  absolute  monarchy  by 
divine  right.  His  literary  genius,  even  more  than 
his  exalted  social  position,  won  for  him  an  influence 
far  above  that  of  any  of  the  obscure  theologians  who 
tediously  propounded  much  the  same  doctrine,  and 
entitled  him  to  rank  as  superior  even  to  Sir  Robert 
Filmer,  whose  logic  is,  on  the  whole,  rather  better 
than  Bossuet's. 

In  the  Politics  as  derived  from  the  Scriptures  the 
method  is  simply  that  of  fortifying  every  principle 
asserted  by  quotations  from  the  Bible.  It  is  the 
method  familiar  to  us  from  our  study  of  mediaeval 
theories ;  but  Bossuet  exhibits  nothing  of  the  mediae- 
val formalism  and  terminology  and  adopts  the  man- 
ner and  the  categories  of  contemporary  rationalistic 
philosophers.  There  is  indeed  a  frequent  recourse 
to  Hobbesian  dogmas  that  proves  the  author's  suscep- 
tibility to  the  currents  of  his  environment ;  but  the 
Hobbesian  supports  for  the  dogmas  are  of  course 
very  rarely  adopted.2  Whatever  we  may  think  at 

1  This  point  is  ably  discussed  in  Franck's  brilliant  essay  on  Bossuet 
in  Rtformateurs  et  Publicistes,  pp.  430  et  seq.,  esp.  pp.  455-456. 

2  That  Hobbes's  philosophy  had  followers  in  France  during  the 
reign  of  Louis  XIV  is  evident  from  the  translations  that  were  made 
in  that  period.     See  "  Les  traductions  frai^aises  de  Hobbes  sous  le 
regne  de  Louis  XIV,"  in  Archiv  fiir  Geschichte  der  Philosophic,  Berlin, 
1899. 


BOSSUETS  FIRST  PRINCIPLES  327 


times  of  the  aptness  of  the  texts  which  Bossuet  brings 
to  the  support  of  his  principles,  no  one  can  fail  to 
be  impressed  by  the  ingenuity  with  which  some 
text  is  invariably  discovered  that  is  adapted  to  the 
purpose  in  hand. 

The  fundamental  principles  of  Bossuet' s  philosophy 
are  the  familiar  dogmas  that  man  is  by  nature 
sociable,  that  the  evil  passions  of  men  render  social 
life  impossible  without  regulation,  and  that  govern- 
ment, therefore,  is  necessary.  In  a  number  of  places 
it  seems  to  be  intimated  that  governmental  power  is 
conferred  upon  the  sovereign  by  transfer  from  the  in- 
dividual—  that  the  individual  gives  up  his  natural 
right  to  the  holder  of  governmental  power ; l  but 
these  appear  to  be  mere  slips  of  the  author,  illustrat- 
ing a  tendency  toward  undue  rationalizing.  It  is  in- 
deed true  as  a  general  proposition  that  Bossuet  is  but 
moderately  clear  and  consistent  in  his  fundamental 
dogmas  about  society,  government  and  law.  He  be- 
comes entirely  clear  in  the  second  book,  "  On  Author- 
ity." Under  God,  he  holds,  monarchy  is  the  most 
usual  and  most  ancient,  and  therefore  the  most 
natural  form  of  government.  It  is  modelled  on  the 
paternal  government,  which  is  itself  an  institute  of 
nature  pure  and  simple.2  Monarchic  government  is 
not  only  the  most  natural,  it  is  the  strongest  and 
therefore  the  best ;  and  hereditary  monarchy  is  the 
best  of  all. 

1  Cf.  Book  I,  chap,  iii,  prop.  5. 

a  "  All  men  are  born  subjects,  and  the  paternal  rule  which  ac- 
customs them  to  obey  accustoms  them  at  the  same  time  to  have  a 
single  ruler."  —  II,  i,  7. 


328  POLITICAL  THEORIES 

The  demonstration  of  the  foregoing  from  the  Bible 
is  fairly  easy,  but  the  task  becomes  void  of  all  diffi- 
culty when  the  essential  characteristics  of  royalty 
are  to  be  established.1  The  authority  of  a  king  is 
declared  to  be  sacred,  paternal,  absolute  and  subject 
to  reason.  The  sanctity  of  royal  authority,  attested 
in  the  unction  by  the  priests  of  God,  makes  it  sacri- 
lege to  assail  the  person  of  the  king.  His  paternal 
character  requires  him  to  provide  for  the  welfare  of 
his  people  as  a  father  does  for  his  children.  That 
the  authority  of  the  king  is  absolute  does  not  imply, 
Bossuet  carefully  maintains,  that  it  is  arbitrary.  The 
two  ideas  must  not  be  confounded.2  While  the  prince 
is  not  obliged  to  render  account  of  his  conduct  to 
anybody  and  while  no  one  has  coercive  power  over 
the  prince,  nevertheless  he  is  bound  to  conform  to 
the  laws.  The  obligation  has  no  sanction ;  but  the 
obligation  of  the  people  to  obey  the  king  has  a 
sanction.  "  The  people  must  fear  the  prince,  but  if 
the  prince  fears  the  people  all  is  lost." 3  What  is 
essential  in  a  monarch  is  reason,  and  it  is  the  be- 
stowal of  this  upon  him  by  God  that  constitutes 
the  most  important  characteristic  of  royal  authority. 
The  king  is  in  fact  an  image  of  the  majesty  of  God 
himself.  It  is  wholly  wrong  to  look  upon  the  king 
as  a  mere  man.  He  is  a  public  person  and  in  him  the 
whole  people  is  embodied.  "  As  in  God  are  united  all 

1  Books  III-V. 

2  Pour  rendre  ce  terme  odieux  et  insupportable  plusiers  affectent 
de  confondre  le  gouvernement  absolu  et  le  gouvernement  arbitraire. 
Mais  il  n'y  a  rien  de  plus  distingue. — IV,  i. 

'  IV,  i,  6. 


BOSSUET  ON  ROYALTY  329 

perfection  and  every  virtue,  so  all  the  power  of  all 
the  individuals  in  a  community  is  united  in  the  per- 
son of  the  prince."  1  So  sublime  is  the  majesty  of  a 
prince  that  it  can  be  due  to  no  human  source ;  it  can 
come,  and  it  does  come,  only  from  God. 

In  view  of  such  rhapsodical  glorification  of  royal 
authority  it  is  not  surprising  that  Louis  XIY  heartily 
approved  of  Bossuet  and  his  teachings.  The  writer's 
tendency  to  lapse  into  rationalistic  dogmas  was  easily 
overlooked  in  the  contemplation  of  this  apotheosis  of 
the  king.  That  the  monarch  has  duties  toward  his 
subjects  and  toward  God  is  indeed  set  forth  at  length 
in  the  work : 2  he  must  maintain  religion  and  must 
maintain  justice.  |  Keligion,  whether  true  or  false,  is 
essential,  Bossuet  contends,  in  social  life ;  it  is  the 
duty  of  a  monarch,  however,  to  exterminate  the  false 
religions  if  he  is  able ;  but  a  false  religion  is  better 
than  none.3 

In  the  presence  of  such  a  conception  of  royal 
authority  there  remains,  of  course,  no  room  what- 
ever for  anything  but  absolute  submission  on  the 
part  of  subjects.  Open  impiety  on  the  part  of  a  prince 
—  even  persecution  of  the  adherents  of  the  true 
religion  —  does  not  exempt  the  subjects  from  the 
obedience  which  they  owe  to  him.  To  violent  or 


1  "  Consider  a  great  people  united  in  a  single  person ;   consider 
that  power   sacred,  paternal,  absolute;   consider  the   secret  reason 
which  controls  the  whole  body  of  the  state  enclosed  within  a  single 
man ;  thus  you  see  the  image  of  God  in  the  king  and  you  have  the 
idea  of  royal  majesty."  —  V,  iv,  1. 

2  Book  VII :  "  Of  the  Various  Duties  of  Royalty." 
8  VII,  ii,  3  and  iii,  9. 


330  POLITICAL  THEORIES 

arbitrary  acts  by  a  ruler,  subjects  may  indeed  oppose 
"respectful  protests/'  but  faultfinding  or  open  mu- 
tiny is  no  privilege  of  theirs,  and  their  extremest 
recourse  must  be  prayers  for  the  conversion  of  the 
offender.  Bossuet  finds  much  difficulty  in  reconcil- 
ing this  doctrine  with  two  particular  episodes  of 
Biblical  history,  namely,  the  conduct  of  David  and 
the  conduct  of  the  Maccabees;  but  he  is  able,  by 
rather  refined  methods  of  interpretation,  to  reach  the 
conclusion  that  there  is  not  to  be  found  in  these  inci- 
dents a  precedent  for  revolt  on  the  part  of  any  other 
subjects. 

Bossuet' s  justification  and  glorification  of  the  abso- 
lute French  monarch  were  accompanied  and  supple- 
mented by  a  passionate  devotion  to  the  cause  of  the 
national  French  church  as  against  the  claims  of  the 
Koman  See.  Louis  XIY,  in  enforcing  his  claim  to 
supremacy  in  all  departments  of  French  life,  came 
into  rude  conflict  with  the  Pope  in  ecclesiastical  mat- 
ters, and  Bossuet  shone  above  all  the  rest  of  the 
clergy  in  the  energy  and  effectiveness  with  which  the 
independence  of  the  Gallican  church  was  asserted  and 
maintained.  That  this  independence  meant  inde- 
pendence of  the  Pope,  but  subjection  to  the  King, 
was  an  obvious  incident  of  the  situation.  But  this 
was  accepted  without  qualification  by  Bossuet;  for 
in  France  as  in  England  the  indivisible  union  of 
church  and  crown  was  an  instinctive  as  well  as  a 
rational  corollary  of  the  doctrine  of  monarchy  by 
divine  right. 


LEIBNITZ   AND  THOMASIUS  331 


5.   Minor  Currents  in  Continental  TJieory 

In  the  copious  literature  of  the  age  with  which  we 
are  concerned  the  doctrines  represented  by  the  philos- 
ophers just  considered  found  frequent  expression  in 
various  forms.  Spinoza's  theory  received  indeed  but 
little  attention ;  the  systems  presented  by  Pufendorf 
and  Bossuet,  however,  were  the  subject  of  treatment 
by  numerous  other  writers.  The  theory  of  natural 
law  was  examined  in  various  aspects  by  the  great 
Leibnitz,  who  strongly  dissented  from  the  particular 
development  given  to  it  by  Pufendorf;  but  the  in- 
terest and  speculation  of  Leibnitz  were  centred 
mostly  about  the  relations  of  natural  law  to  theology, 
and  his  effort  was  to  check  the  separation  of  the  two 
which  was  effected  by  the  extreme  rationalizing 
philosophers.1  Christian  Thomas ius,  a  pupil  of  Pu- 
fendorf, followed  very  closely  in  the  footsteps  of  his 
master  and  stoutly  maintained,  against  the  influence 
of  Leibnitz,  the  conception  of  a  body  of  dogma  rest- 
ing on  human  reason  alone,  independent  of  theology 
and  furnishing  a  final  unquestionable  norm  for  social 
and  political  institutions.  But  Thomasius,  while 
reckoned  one  of  the  chiefs  of  the  rationalistic  school 
in  its  strife  with  the  theologians,  made  no  contribu- 
tions to  the  theory  of  politics  proper. 

The  doctrine  of  monarchy  by  divine  right,  on  the 
other  hand,  found  in  addition  to  Bossuet  an  ardent  and 

1  See  Bluntschli,  Geschichte,  pp.  173  et  seq.  For  the  scattered 
ideas  of  Leibnitz  on  strictly  political  subjects,  see  Janet,  Histoire, 
II,  245. 


332  POLITICAL  THEORIES 

aggressive  defender  in  the  German  Horn,  who,  if  less 
conspicuous  and  influential,  was  in  no  degree  less 
logical  than  the  great  French  bishop.1  With  more 
preciseness  than  Bossuet,  Horn  ascribes  to  the  sover- 
eignty possessed  by  a  monarch  a  divine  source  and 
character  and  contends  that  while  conceivably  a 
mass  of  human  beings  may  designate  a  particular 
person  to  receive  the  mystic  attribute  of  majesty, 
the  actual  bestowal  must  come  from  God,  in  whom 
alone  that  supreme  quality  can  be  conceived  to  exist. 
The  Hobbesian  notion  that  the  sovereign  power  of 
a  king  is  derived  from  a  group  of  feeble  human 
beings,  Horn  regards  as  no  less  destructive  of  all 
social  order  than  the  doctrines  of  the  monarcho- 
machs  themselves. 

During  the  later  years  of  the  reign  of  Louis  XIV, 
when  the  long  wars  and  the  vast  extravagance  which 
had  attended  the  full  development  of  that  monarch's 
policy  were  producing  their  natural  economic  effects 
in  France,  there  appeared  some  indications  of  a  reac- 
tion from  the  obscurantist  absolutism  of  the  prevail- 
ing philosophy.  Fenelon,  the  associate,  rival  and 
victim  of  Bossuet,  breathed  into  his  very  popular 
literary  works  a  spirit  suggesting  doubts  as  to  the 
probability  that  any  human  being,  however  divinely 
endowed  with  majesty,  could  so  direct  the  life  of  a 
great  people  as  to  satisfy  the  requirements  of  human- 


1  Johann  Friedrich  Horn,  Politicorum  Pars  Architectonica  de  Civitale 
(1664).  See  Gierke,  Althusius,  pp.  70  et  seq.  Pufendorf  directed  a 
vigorous  polemic  against  Horn's  theory  of  sovereignty;  see  the  De 
lure  Natures  el  Gentium,  VII,  iii,  3. 


THE  DECLINE  OF  LOUIS  XIV  333 

ity.1  Vauban,  after  contributing  very  much  to  the 
military  glory  of  the  king  by  his  engineering  genius, 
turned  in  his  latter  days  to  the  contemplation  of  the 
misery  which  afflicted  the  subjects  of  the  grand  mo- 
narque,  and  proposed  a  readjustment  of  taxation  in 
the  interest,  not  of  the  state  —  that  is,  the  king  and 
his  court  —  but  of  the  people.2  Boisguilbert,  another 
official  of  the  administration,  set  forth  in  statistical 
form  the  evil  condition  of  the  finances,  with  criti- 
cisms that  reflected  rather  seriously  on  the  claim 
of  the  sovereign  to  godlike  wisdom.  But  none  of 
these  deviations  from  the  normal  tone  of  political 
thought  was  of  noteworthy  significance.  The  philos- 
ophers who  published  the  liberalizing  works  were  vis- 
ited with  the  displeasure  of  the  court  and  they  found 
no  followers  and  no  imitators.  Neither  in  France 
nor  anywhere  on  the  Continent  was  there  during 
the  latter  half  of  the  reign  of  Louis  XI Y  any  in- 
fluential and  authoritative  discussion  of  political 
doctrines  save  on  the  lines  of  a  pretty  complete  justi- 
fication of  absolute  monarchy  as  the  most  desirable 
form  of  government.  Far  other,  however,  was  the 
situation  in  the  British  Isles.  Here  had  been  carried 
on  a  spirited  debate  covering  the  whole  ground  of 
fundamental  political  theory,  with  the  doctrines  of 
monarchic  and  popular  sovereignty  in  the  centre 
of  the  field,  and  here  had  been  carried  on  in  the  world 
of  objective  fact  the  dethronement  of  a  king  and  the 

1  In  the  famous  Tele'maque  and  other  works.     See  Janet,  Fe'nelon, 
chap,  viii ;  also  Histoire  de  la  Science  Politique,  II,  291  et  seq. 

2  La  Dime  Royale,  pub.  in  1707. 


334  POLITICAL  THEORIES 

establishment  of  a  new  system  of  government.  It 
is  to  Great  Britain,  therefore,  and  to  the  incidents 
connected  with  the  Revolution  of  1688  that  we  must 
turn  in  order  to  follow  the  main  current  of  specula- 
tion on  politics. 

SELECT  REFERENCES 

BLUNTSCHLI,  Geschichte,  pp.  129-197.  BOSSUET,  La  Politique 
tiree  de  VEcriture  ;  5™  Avertissement  aux  Protestants.  FENELON, 
Projets  de  gouvernement,  in  his  Works.  FRANCK,  Reformateurs 
et  Publicistes,  XVII™  siecle,  pp.  333-353  (Pufendorf  and 
Thoniasius),  410-457  (Spinoza  and  Bossuet),  465-513  (Fene- 
lon  and  Leibnitz).  JANET,  Fenelon,  chap,  viii;  Histoire  de  la 
Science  Politique,  II,  248-302.  POLLOCK,  Spinoza,  his  Life 
and  Philosophy,  esp.  chap.  x.  PUFENDORF,  The  Law  of 
Nature  and  of  Nations,  Kennett's  translation.  SPINOZA, 
Opera  (Tauchnitz),  Vols.  II  and  III;  also  Political  Treatise 
and  Theologico-Political  Treatise,  (trans,  by  Elwes).  VOL- 
TAIRE, Siecle  de  Louis  XIV,  esp.  chaps,  xxix  et  seq.  WAKE- 
MAN,  Europe,  1598-1715,  chaps,  ix-xv. 


CHAPTER  X 

JOHN   LOCKE 

1.   Practical  Politics  of  the  English  Revolution 

THE  restoration  of  the  Stuarts  to  the  throne  of 
England  in  1660  signified  the  failure  of  the  Puritan 
Parliamentary  party  as  a  party  of  construction  ;  but  it 
did  not  signify  the  disappearance  of  the  ideas,  either 
theoretical  or  practical,  upon  which  the  movements  of 
the  preceding  two  decades  had  been  based.  After  the 
first  surge  of  violent  reaction  had  exhausted  its  force, 
the  ancient  friction  between  crown  and  Parliament, 
between  law  and  prerogative,  assumed  once  more  the 
first  place  in  the  general  political  sit  nation,  and  with  it 
was  renewed  the  strife  between  the  established  church 
and  the  nonconforming  sects.  Charles  II,  by  becom- 
ing the  shameless  dependant  of  Louis  XIV,  succeeded 
in  evading  the  direct  issue  with  Parliament  over  tax- 
ation upon  which  his  father  had  lost  the  throne ;  but 
James  II,  less  ignoble,  if  also  less  shrewd  than  his 
brother,  precipitated  the  revolution  upon  the  religious 
and  ecclesiastical  issue. 

The  cardinal  fact  in  the  adjustment  which  settled 
the  restored  king  firmly  upon  his  throne  was  the 
strict  alliance  of  the  established  church  with  the 
crown.  Both  institutions  had  suffered  the  last  degree 

335 


336  POLITICAL  THEORIES 

of  indignity  at  the  hands  of  the  Puritans,  and  a  union 
for  security  against  the  recurrence  of  such  an  experi- 
ence was  instinctive.  Hence,  at  every  manifestation 
of  a  tendency  in  Parliament  toward  limitation  of  the 
royal  authority,  the  king  could  count  on  the  blind 
and  unwavering  support  of  the  bishops  in  the  House 
of  Lords  and  of  the  lower  clergy  in  the  constituencies 
of  the  Commons,  with  the  doctrine  of  divine  right  and 
passive  obedience  as  the  foundation  of  all  relations 
between  monarch  and  subject.  The  reign  of  Charles 
II  was  indeed  the  culminating  point  of  this  doctrine 
in  England.  Not  in  the  rationalistic  form  in  which 
Hobbes  had  displayed  it,  but  in  the  full  obscurantist 
spirit  that  characterized  the  days  of  Laud,  and  that 
characterized  contemporary  thought  at  the  court  of 
Louis  XIY,  the  duty  of  unresisting  submission  to  the 
Lord's  Anointed  was  kept  before  the  English  people 
in  copious  floods  of  sacerdotal  literature.  Every  effort 
of  that  party  in  Parliament  which  was  coming  to  be 
known  as  the  Whigs,  to  liberalize  the  existing  in- 
stitutions of  either  state  or  church,  was  met  by  the 
obstinate  resistance  of  the  ecclesiastics.  The  Uni- 
versity of  Oxford,  the  historic  home  of  extreme 
royalism,  formulated  in  convocation  in  1683  a  con- 
demnation of  "  certain  pernicious  books  and  damnable 
doctrines  destructive  to  the  sacred  persons  of  princes, 
their  state  and  government,  and  of  all  human  society," 
and  from  this  document  may  be  readily  gathered  the 
substance  of  the  Tory  creed  of  the  day.1  Among  the 
doctrines  thus  condemned  were  that  of  the  origin 

1  For  the  text  see  Cooke,  History  of  Party,  Vol.  I,  p.  346. 


THE  ENGLISH  REVOLUTION  337 


of  civil  government  in  popular  contract  of  any  sort ; 
every  aspect  of  the  right  of  resistance  to  a  king, 
whether  he  violated  the  laws  of  God,  the  laws  of 
the  land,  or  any  other  prescription ;  and  Hobbes's 
whole  doctrine  of  the  state  of  nature  and  the  origin 
of  government  in  self-interest  of  the  individual.  It 
was  in  connection  with  the  sharp  conflict  of  parties  in 
the  latter  days  of  Charles  II  that  Sir  Robert  Filmer's 
Patriarcha 1  was  published  in  1680,  and  the  popular- 
ity which  it  obtained  is  convincing  evidence  that  the 
doctrines  which  it  embodied  were  the  dominant 
doctrines  in  the  English  people  of  the  day.  Until  the 
death  of  Charles  II  the  alliance  of  church  and  crown 
stood  firm  despite  the  strain  often  put  upon  it  by  the 
Catholicizing  tendency  of  the  king.  Only  because 
James  II  deliberately  disrupted  this  alliance  and 
alienated  the  church  from  his  cause,  did  the  Revolu- 
tion of  1688  become  possible. 

The  chief  bond  which  united  the  church  to  the 
king  at  the  Restoration  was,  as  has  been  said  above, 
a  common  fear  and  hatred  of  the  Puritan  dissenters 
of  all  shades  who  had  been  responsible  for  the  destruc- 
tion of  the  old  royal  and  ecclesiastical  order.  Of 
almost  equal  importance  in  the  view  of  the  church,  but 
far  less  important  to  the  mind  of  the  king,  was  the 
ancient  danger  from  the  Catholics.  The  stringent 
legislation  which  was  enacted  against  nonconformity 
was  aimed  by  the  ecclesiastics  against  Protestants  and 
Catholics  alike,  but  its  administration  was  tempered 
by  the  king  to  the  Catholics  particularly.  Gradually, 

1  Supra,  p.  255. 


VOL.  II.- 


338  POLITICAL  THEORIES 

as  time  passed  on,  the  Protestant  dissenters,  proving 
themselves  entirely  peaceable  and  embracing  noto- 
riously a  very  large  element  of  useful  and  prosperous 
citizens,  ceased  to  excite  so  strong  feelings  of  fear  and 
hatred  in  the  church  party ;  and  on  the  other  hand, 
the  obvious  inclination  of  the  king  to  tenderness 
toward  the  Catholics  made  the  latter  the  chief  object 
of  dread.  The  solution  which  was  proposed  by  the 
liberal  spirits  of  the  opposition  party  for  the  complex 
relations  of  the  various  sects  was  a  general  toleration 
of  religious  belief.  This  it  was  claimed  was  the  only 
possible  method  by  which  peace  and  order  could  be 
permanently  insured  without  loss  of  valuable  strength 
to  the  nation.  The  church  party  was  disposed  to 
some  measure  of  toleration  of  Protestant  dissenters, 
but  feared  any  concession  to  Catholics  ;  and  the  king, 
lukewarm  toward  any  relief  for  the  Protestants,  was 
willing  to  go  far  in  indulgence  to  the  Catholics. 
Through  this  play  of  cross  purposes  toleration  utterly 
failed  in  Parliament,  but  the  king  through  his 
executive  discretion  was  able  to  ease  greatly  the  bur- 
dens of  those  whom  he  especially  favoured. 

James  II,  ascending  the  throne  an  avowed  Catholic, 
assumed  an  aggressive  attitude  of  tolerance  for  all 
Protestant  sects,  endeavouring  to  win  the  Protestant 
dissenters  to  his  support  in  a  policy  which  was  clearly 
seen  to  be  designed  particularly  for  the  benefit  of  the 
Catholics.  The  unnatural  alliance  which  he  aimed  at 
was  very  quickly  shown  to  be  impossible.  Much  as 
churchmen  and  dissenters  disliked  each  other,  the 
feeling  was  affection  itself  in  comparison  with  the 


THE  ENGLISH  REVOLUTION          339 

hatred  with  which  each  regarded  the  Catholics. 
James,  forging  recklessly  ahead  in  his  blundering  way, 
pushed  to  its  limit  the  claim  that  for  the  benefit  of 
his  realm  his  prerogative  could  supersede  established 
law.  This  old  issue,  on  which  substantially  Charles  I 
had  lost  his  throne  and  his  life,  roused  to  full  intens- 
ity the  spirit  of  opposition  among  the  maintainers  of 
the  Parliamentary  tradition,  now  to  be  found  chiefly 
in  the  Whig  faction  and  to  a  considerable  extent 
among  the  dissenters.  But  the  opposition  might 
still  have  been  ineffective  had  not  the  church  party, 
in  terror  of  a  Catholic  regime,  dropped  their  doctrine 
of  passive  obedience  and  joined  in  resistance,  in  some 
cases  passive  and  in  some  cases  active.  This  change 
produced  that  unity  in  the  nation  which  caused  the 
flight  of  the  king  and  the  accession  to  power  of 
William  and  Mary. 

Both  in  the  process  through  which  the  crown  was 
actually  transferred  from  the  old  to  the  new  wearers, 
and  in  the  legislation  through  which  the  process  was 
validated,  the  triumph  of  the  Parliamentary  over  the 
royalist  principle  in  the  long  controversy  was  made 
perfectly  evident.  An  irregularly  constituted  but 
clearly  representative  convention  of  leading  poli- 
ticians transacted  the  business  through  which  the 
Prince  of  Orange  and  his  wife  were  seated  upon  the 
throne,  and  this  same  convention,  assuming  the  name 
and  functions  of  Parliament,  enacted  the  laws  which 
in  most  explicit  terms  set  limits  to  the  royal  power. 
By  the  Bill  of  Rights  the  power  to  suspend  or  dis- 
pense with  the  execution  of  the  laws  and  the  power 


340  POLITICAL  THEOKIES 

to  levy  money  without  Parliamentary  vote  were  de- 
clared illegal,  and  a  number  of  rights  which  had  been 
claimed  for  citizens  against  the  crown  by  the  Whig 
opposition,  were  formally  guaranteed.  The  statute, 
moreover,  declared  William  and  Mary  to  be  the  hold- 
ers of  the  royal  power,  and  thus  made  their  title 
formally  a  Parliamentary  title ;  and  if  not  in  words, 
at  least  by  unquestionable  implication,  their  tenure 
of  the  throne  was  made  conditional  on  the  mainten- 
ance of  those  rights  and  liberties  which  the  act  de- 
fined. On  the  other  hand,  the  principle  of  toleration 
not  only  was  not  recognized,  but  was  flatly  repudi- 
ated by  a  series  of  most  ingeniously  oppressive  acts 
against  Catholics.  For  Protestant  dissenters,  how- 
ever, some  slight  tendency  to  concession  was  mani- 
fested, and  thus  freedom  of  conscience,  for  Protestants 
at  least,  secured  a  precarious  foothold  in  the  law  of  the 
land. 

2.   Relation  of  Locke   to  Contemporary  Theory  and 

Practice 

With  the  Restoration  of  1660  the  crude  and  fan- 
tastic social  and  political  doctrines  which  had  been 
preached  during  the  Commonwealth  by  the  Levellers 
disappeared  from  the  literature  and  in  great  measure 
from  the  thought  of  the  time.  Under  the  new  con- 
ditions only  the  defenders  of  monarchic  divine  right 
were  privileged  to  indulge  in  absurd  and  irrational 
dogmatizing.  The  religious  sects  whose  creeds  had 
been  both  the  strength  and  the  weakness  of  the 
Commonwealth  settled  down  under  the  persecution 


TENDENCY  TO  TOLERATION          341 

of  the  triumphant  Anglican  establishment  into  peace- 
ful communities  of  worshippers,  with  no  more  desire 
than  opportunity  to  assert  any  principle  of  political 
theory.  Independents,  Baptists  and  Quakers,  as  well 
as  the  more  aristocratically  disposed  Presbyterians, 
manifested  little  or  no  interest  in  any  phase  of 
politics,  save  the  possibility  of  some  measure  of 
toleration  for  their  cherished  creeds.  After  certain 
well-intended  efforts  of  liberal-minded  Anglicans  to 
bring  the  less  extreme  dissenters  again  within  the 
church  had  proved  futile,  the  idea  gained  headway 
among  the  nonconformists  that  a  general  freedom  of 
conscience  would  be  the  only  solution  of  the  existing 
difficulties.  William  Penn  deliberately  adopted  the 
principle  in  its  most  advanced  form  in  his  govern- 
ment of  Pennsylvania ;  and  the  proprietors  of  South 
Carolina,  some  years  before  Penn's  action,  included  a 
modified  form  of  the  principle  in  the  frame  of  govern- 
ment constructed  for  their  province.1  That  Locke 
himself  framed  the  Carolina  constitution  is  sufficient 
indication  of  his  entire  sympathy  with  the  movement 
toward  toleration.  Though  steadfast  in  the  com- 
munion of  the  established  church,  his  philosophy 
placed  him  always  with  those  who  held  religious 
belief  to  be  no  rightful  subject  for  governmental 
supervision. 

While  freedom  of  conscience,  thus,  which  had 
been,  as  we  have  seen,  a  prominent  feature  of  politi- 
cal theory  in  the  days  of  the  Commonwealth,  con- 
tinued to  play  a  role  among  conservative  thinking 

1  Fundamental  Constitutions,  sees.  97-110. 


342  POLITICAL  THEORIES 

men,  the  most  distinctive  dogma  of  the  Common- 
wealth period, (that  republican  was  preferable  to 
monarchic  government,  found  practically  no  expres- 
sion after  the  Restoration  save  among  the  more  wild 
and  lawless  spirits  who  were  concerned  in  the  in- 
trigues that  centred  about  the  Rye  House  Plot.1  j  The 
opposition  to  the  last  two  Stuart  kings  and  their 
policy  was  led  by  men  of  rank  and  property,  from 
the  higher  social  strata,  and  destitute  of  all  sympathy 
with  the  aims  and  methods  of  the  Levellers,  or  even 
of  the  moderate  Republicans.  They  held  in  general 
to  the  idea  of  popular  sovereignty  as  distinct  from 
monarchy  by  divine  right,  but  in  respect  to  the  form 
of  government,  their  purpose  was  to  restrict  the 
monarch  rather  than  to  do  away  with  him.  A 
limited  monarchy  rather  than  a  Commonwealth 
was  their  ideal;  they  were  not  Republicans,  but,  in 
the  sense  that  history  has  attached  to  the  name,  they 
were  Whigs.  It  is  this  class  which  the  philosophy 
of  Locke  preeminently  represents.  He  cast  their 
ideas  in  the  mould  of  well-rounded  theory,  while  they 
themselves,  for  the  most  part,  guided  their  policy 
from  day  to  day  by  the  requirements  of  fluctuating 
expediency. 

Among  the  opponents  of  the  royal  power  in  the 
later  days  of  Charles  II,  when  party  feeling  ran  high- 
est, one  of  the  most  scholarly  and  philosophical  in 
temperament  was  Algernon  Sydney,  who  was  exe- 
cuted for  treason  in  1683.  His  Discourses  concern- 

1  For  a  good  sketch  of  the  thought  of  this  period,  see  Gooch, 
English  Democratic  Ideas  in  the  Seventeenth  Century,  chap.  x. 


ALGERNON  SYDNEY  343 

ing  Government,  published  after  the  Revolution  of 
1688,  embodied  an  elaborate  attack  on  the  doctrines 
of  the  court  party.  His  text  was  Filmer's  Patri- 
archa,  which  he  subjected  to  a  refutation,  step  by 
step/  The  form  which  his  work  takes  in  consequence 
of  this  method  leaves  his  constructive  theory  very 
vague  and  uncertain.  He  has  generally  been  de- 
scribed as  a  "republican,"  but  there  is  hardly  more 
reason  to  apply  that  term  to  him  than  to  Locke. 
What  appears  entirely  clear  is  his  doctrine  that  gov- 
ernment is  an  institution  created  by  men  for  their 
own  security  and  interest  and  that  it  rests  upon  no 
prescription  of  either  God  or  nature  save  in  the  sense 
that  such  prescriptions  are  involved  in  the  conclu- 
sions of  human  reason.  Authority  rests  on  consent, 
and  the  holder  of  authority  over  men  has  no  basis  for 
the  exercise  of  his  power  save  the  agreement  of  the 
subjects  for  their  own  ends  to  respect  it.  Sover- 
eignty, therefore,  is  indefeasibly  in  the  people,  Syd- 
ney holds ;  and  the  administration  of  government, 
whether  in  the  hands  of  a  monarch  or  of  any  group 
of  men,  is  subject  to  an  overruling  popular  control./ 
That  the  monarchic  form  of  government  is,  on  the 
whole,  not  adapted  to  secure  the  ends  for  which 
authority  is  instituted,  is  clearly  enough  Sydney's 
opinion ;  but  on  the  other  hand,  his  dislike  for  demo- 
cratic government  is  no  less  clear.  His  preference  is 
iously  for -aristocracy,  and  this  is  in  line  with  the 
ole  spirit  of  his  thought,  which  is  saturated  with 
the  influence  of  classical  antiquity.  His  Discourses 
display  an  enormous  amount  of  historical  erudition^ 


344  POLITICAL  THEOKIES 

with  special  predilection  for  the  Roman  Common- 
wealth, and  at  many  points  both  the  substance  and 
the  method  of  his  thought  closely  parallel  Machia- 
velli's  Discorsi.1  Sydney  is,  however,  distinctly  less 
broad  in  his  philosophy  than  the  Italian,  and  in 
this  respect  is  far  behind  Locke  also,  with  whose 
specific  doctrines  he  is  often  in  substantial  accord. 
Locke,  born  in  1632,  was  the  son  of  a  Puritan 
soldier,  received  his  education  when  the  schools  and 
universities  were  under  Puritan  influence,  and  became 
closely  associated  in  early  manhood  with  that  brilliant 
and  liberal-minded,  if  unscrupulous  and  erratic,  Earl 
of  Shaftesbury  who  was  the  founder  of  the  Whig 
party.  All  these  circumstances  combined  with  his 
temperament  to  make  Locke  alien  to  the  controlling 
ecclesiastical  and  political  forces  during  the  last 
Stuart  reigns.  At  the  same  time  he  had  no  sym- 
pathy with  the  extremist  doctrines  and  tendencies 
among  the  Whigs.  Late  in  the  reign  of  Charles  II, 
however,  he  fell  under  suspicion  and  was  obliged  to 
seek  safety  in  Holland,  where  he  remained  until  the 
expulsion  of  James  II.  Returning  then  -to  England, 
he  published  for  the  first  time  the  works  on  which 
his  philosophical  fame  rests.  His  Two  Treatises  of 
Government  embodied  in  purely  scientific  form  the 
justification  of  the  Revolution.  The  Letter  concern- 
ing Toleration  set  forth  a  theory  of  the  particular 
relations  between  church  and  state  which  Locke 

1  Cf.  Sydney's  Discourses,  chap,  ii,  sees.  22-23.  He  argues  that 
the  city,  like  the  child,  must  not  remain  in  its  original  weakness.  "  If 
it  do  not  grow  it  must  pine  and  perish;  for  in  this  world  nothing  is 
permanent :  that  which  does  not  grow  good  will  grow  worse." 


LOCKE'S  FIRST  PRINCIPLES  345 

conceived  to  be  sound,  though  it  was  one  which  the 
existing  conditions  did  not  permit  to  be  adopted  by 
the  triumphant  Revolutionary  party.  Of  his  Two 
Treatises  of  Government,  the  first  follows  precisely 
the  method  of  Sydney  in  refuting  step  by  step  the 
arguments  of  Filmer's  Patriarcha ;  the  second  goes 
far  in  advance  of  Sydney  by  presenting  a  systematic, 
constructive  theory  of  state  and  government.  Al- 
though there  is  in  Locke's  theory  but  little  that  had 
not  long  been  current  coin  in  political  philosophy, 
the  form  and  spirit  in  which  it  is  presented  and  the 
far-reaching  influence  which  it  exerted  must  justify  a 
somewhat  careful  analysis  of  his  work. 

3.    The  State  of  Nature  and  Natural  Rights 

In  explaining  the  origin  of  political  authority, 
Locke  adopts  the  same  individualistic  point  of  view 
that  Hobbes  had  taken,  and  starts  with  the  conception 
of  a  state  of  nature  ;  but  it  is  not  the  original  Hobbes- 
ian  doctrine  so  much  as  Pufendorf's  modification  of 
it  that  is  presented  by  the  Whig  philosopher.  The 
state  of  nature  as  conceived  by  Locke  is  a  pre-political 
rather  than  a  pre-social  condition.  It  is  not  a  state 
in  which  men  live  in  brutish  reciprocal  hostility,  but 
one  in  which  peace  and  reason  prevail.  It  is  not  a 
lawless  state.  Rejecting  the  incisive  Distinction  made 
by  Hobbes  between  the  law  of  nature  and  real  law, 
Locke  follows  the  Grotian  doctrine  and  declares  the 
law  of  nature  to  be  a  determining  body  of  rules  for 
the  conduct  of  men  in  their  natural  condition.  Under 
this  law,  of  which  reason  is  the  interpreter,  equality 


346  POLITICAL  THEORIES 

N  m 

is  the  fundamental  fact  in  men's  relations  to  one 
another.  On  this  foundation  Locke  constructs  his 
doctrine  as  to  the  natural  rights  which  belong  to 
every  man  in  the  pre-political  state,  and  explains  why 
this  state  is  unsatisfactory. 

These  natural   rights  are  summed  up  under  the 
formula  which,  as  we  have  seen,  had  become   com- 
mon during  the  Puritan!  Revolution,  i.e.  life,  liberty 
\  and  property.1     The  preservation  of  life  is  the  most 
^primary  motive  of   human  action,  and  whatever   is 
N.  reasonably  directed  to  this  end  is  every  man's  privi- 
\  lege  by  the  law  of   nature.     Locke  does  not   differ 
from  Hobbes  on  this  point.  ^As  to  liberty,  on  the 
other  hand,  Locke  departs  from  his  predecessor  and 
\  defines  it  as  exemption,  not  from  every  rule  save  the 
x  individual's  arbitrary   caprice,  but   from   every  rule 
x  save  the  law  o£  riature.     This  law  is  conceived,  thus, 
^  not  as  a  limitation  upon  human  freedom,  but  as  an 
v  essential  concomitant  of  it ;  and  slavery,  in  the  full 
x  sense  of  the  word,  is  merely  the  condition  of  one  who, 
S,  by  violating  the  law  of  nature,  has  withdrawn  him- 
^  self  from  its  protection ;  that  is,  one  who  has  been 
^  made  captive  in  a  just  war.2     Property  right  under 

1  By  broader  generalization  Locke  seeks  to  group  all  three  of  these 
terms  under  the  single  concept  of  "  property."     See  Treatises  of  Gov- 
ernment, II,  sec.  87  :  "  Man  .  .  .  hath  by  nature  a  power  ...  to  pre- 
serve his  property  —  that  is,  his  life,  liberty  and  estate  .  .  ."    Cf.  sec. 
123.     On  the  other  hand  the  phrase  is  sometimes  expanded  to  include 
"  health  " :  e.g.  "  life,  liberty,  health  and  indolency  of  body  and  the 
possession  of  outward  things."  —  Letter  concerning   Toleration;   also 
Treatises,  II,  sec.  6. 

2  Locke  does  not  recognize  any  validity  to  the  contract  theory  of 
slavery.    One  who  is  in  the  absolute  power  of  another  man  cannot,  in 
the  philosopher's  opinion,  make  a  contract.    Ibid.,  sees.  22-24  and  172. 


THE  STATE  OF  NATURE  347 

the  law  of  nature  includes  control  over  all  extraneous 
objects  through  which  the  maintenance  of  life  may 
be  promoted.  Locke  sets  forth  in  a  long  chapter l  his 
famous  theory  as  to  the  rational  basis  of  private 
ownership.  The  essence  of  his  doctrine  is  that  while 
primarily  all  things  are  common  to  all  men,  as  soon 
as  any  individual  has  incorporated  his  labour  in 
any  particular  object  he  has  made  it  his  particular 
property.2 

^  The  state  of  nature,  then,  is  conceived  by  Locke 
as  characterized  by  the  consciousness  of  and  respect 
for  those  natural  rights  which  are  the  substantial 
elements  of  the  law  of  nature ."")  It  is  by  no  means 
to  be  identified  with  the  state  of  war,  as  had  been 
done  by  Hobbes.  This  latter  state  means  simply 
the  condition  that  exists  when  men  have  from  any 
motive  abandoned  the  prescriptions  of  reason  and 
resorted  to  violence.  The  state  of  war  may  exist  as 
well  in  civil  society  as  in  the  natural  state  of  man, 
and  it  does  appear  whenever  attempts  are  made  upon 
one's  life,  liberty  or  property  by  force.  But  the  state 
of  nature  and  the  civil  state  are  differentiated  by  a 
single  clear  test.  In  the  former  there  is  not,  and  in 

1  Treatises,  II,  chap.  v. 

2  "  Although  the  earth  and  all  inferior  creatures  be  common  to  all 
men,  yet  every  man  has  a  'property'  in  his  own  'person.'     This  no- 
body has  any  right  to  but  himself.     The  labour  of  his  body  and  the 
*  work '  of  his  hands,  we  may  say,  are  properly  his.    Whatsoever,  then, 
he  removes  out  of  the  state  that  nature  hath  provided  and  left  it  in, 
he  hath  mixed  his  labour  with,  and  joined  to  it  something  that  is  his 
own  and  thereby  makes  it  his  property.     It  being  by  him  removed 
from  the  common  state  nature  placed  it  in,  it  hath  by  this  labour 
something  annexed  to  it  that  excludes  the  common  right  of  other 
men."  —  Ibid.,  sec.  27. 


348  POLITICAL  THEORIES 

i  the  latter  there  is,  a  common  organ  for  the  interpreta- 
>tion  and  execution  of  the  law  of  nature.  Though 
this  law  be  implanted  in  the  hearts  and  minds  of 
all  men,  yet  differences  of  intelligence  and  conflicts 
of  interest  will  cause  disputes  even  among  those 
most  bent  on  submission  to  nature's  rule.  Every 
individual  is  vested  originally  with  the  full  right  to 
execute  the  mandates  of  this  law.  Each  may  justly 
slay  the  unjust  slayer,  or  visit  justice  upon  the  kid- 
napper or  the  thief.  But  variety  in  manner  and 
method  of  the  enforcement  of  justice  Inevitably  cause 
confusion  and  uncertainty  in  life,  and  there  is  need  of 
a  known  and  certain  rule  in  accordance  with  which 
the  rights  of  individuals  are  to  be  protected  and 
maintained.  It  is  to  secure  such  a  rule  that  civil 
society  is  instituted. 

Locke's  stato.of  nature,  then,  like  Milton's,1  means 
nothing  more  than  thef  relation  which  exists  among 
men  who  have  no  common  political  superior.  Inde- 
pendent sovereigns  illustrate  this  state";  a  Swiss  and 
a  Frenchman  meeting  each  other  in  the  woods  of 
America  illustrate  it ;  and  it  is  illustrated  again  by 
an  absolute  monarch  and  his  so-called  subjects,  since, 
Locke  points  out,  there  exists  no  common  authority 
for  determining  the  application  of  the  law  of  nature 
as  between  them.  Although  this  conception  differs 
fundamentally  from  that  of  Hobbes,  and  though 
Locke  at  first  rejects  entirely  the  notion  of  the  war 
of  each  against  all,  yet  he  in  the  end  concedes  that, 
owing  to  the  weakness  and  viciousness  of  the  majority 

1  Supra,  p.  242. 


JOHN  LOCKE  349 

of  men,  the  natural  state  is  intolerable.1  Thus  he  I 
comes  to  the  process  through  which  the  evils  are  j 
escaped  by  the  substitution  of  civil  for  natural  1 
society. 

4.    The  Social  Contract 

Locke's  form  of  the  contract  through  which  civil 
society  is  created  coincides  with  the  first  of  the  two 
stages  which  Pufendorf  finds  in  the  institution  of  the 
state.2  Each  individual  contracts  with  each  to  unite 
into  and  constitute  a  community.  The  end  for  which 
this  agreement  is  made  is  the  protection  and  preser 
vation  of  property,  in  the  broad  sense  of  the  word, 
that  is,  life,  liberty  and  estate,  —  against  dange 
both  from  within  and  without  the  community.  Th 
contract  involves  an  agreement  by  each  of  the  indi 
viduals  to  give  up  his  natural  right  of  executing  th 
law  of  nature  and  punishing  offences  against  tha 
law:  not  all  his  natural  rights,  as  some  have  held, 
but  merely  this  single  one  is  resigned.  Moreover, 
the  right  given  up  is  given  up  not  to  any  particular 
person  or  group  of  persons,  but  to  the  community 
a  whole.  The  society  thus  becomes,  by  the  act  of  the 
individuals  who  form  it,  vested  with  the  functions  of 
determining  what  are  offences  against  the  law  of 
nature,  and  punishing  violations  of  that  law,  —  and 
those  functions  constitute,  in  Locke's  view,  the  whole 
scope  of  political  authority.  There  is  in  this  concep- 
tion nothing  of  that  absolute,  unlimited  and  uncon- 
trollable sovereignty  which  was  the  soul  of  Hobbes's 

1  Treatises,  II,  chap,  ix  passim.  2  Supra,  p.  323. 


4  350  POLITICAL  THEORIES 

^Lsystein.     The  natural  rights  of  the  individual  limit 
/j  \he  just  power  of  the  sovereign  community  precisely 
as  they  limited,  in  the  state  of  nature,  the  just  power 
of  other  individuals. 

Two  corollaries  are  deduced  by  Locke  from  the 
,idea  that  civil  society  originates  as  above:  First, 
the  right  of  majority  rule  as  the  principle  of  the 
community's  action.  That  the  will  of  the  majority 
(must  bind  the  minority  he  regards  as  demonstrable 
>oth  on  the  ground  of  sheer  necessity,  since  without 
[such  rule  corporate  action  would  be  impossible,1  and 
|pn  the  ground  of  contract,  the  agreement  to  submit 
to  the  will  of  the  majority  being  an  element  in 
the  social  pact.  The  second  corollary  is,  that  the 
commonwealth  is  authorized  by  the  individual  to 
employ  his  force  in  executing  its  judgment  as  to  the 
rights  involved  in  the  law  of  nature.  That  is  to  say, 
the  individual  has  bound  himself  to  contribute  his 
force  to  carry  out  the  decisions  of  the  political 
authority  which  he  has  constituted.2 

The  origin  of  political  societies  through  more  or 
less  formal  contract,  Locke  is  inclined  to  consider 
ail  historical  as  well  as  a  logical  fact.  The  evils 

1  The  difficulty  of  the  question  seems  to  have  interfered  seriously 
wlith  Locke's  lucidity  of  expression  in  explaining  this  point :  "  For 
ttyat  which  acts  any  community  being  only  the  consent  of  the  in- 
dividuals of  it,  and  it  being  necessary  to  that  which  is  one  body  to 
move  one  way;  it  is  necessary  the  body  should  move  that  way  whither 
the  greater  force  carries  it,  which  is  the  consent  of  the  majority:  or 
else  it  is  impossible  it  should  act  or  continue  one  body,  one  com- 
munity, which  the  consent  of  every  individual  that  united  into  it 
agreed  that  it  should ;  and  so  every  one  is  bound  by  that  consent  to 
bejconcluded  by  the  majority." —  Treatises,  II,  sec.  96. 

*  Ibid.,  sec.  88. 


THE  ORIGIN  OF  STATES  351 

attending  the  natural  state  became  obvious,  hej 
argues,  very  early  in  the  life  of  the  race,  and  the! 
union  of  men  into  political  organizations  by  general! 
consent  took  place  before  the  inventioiTof  means  for  j 
perpetuating  the  record  of  the  fact.  To  conclude  that  I 
the  state  of  nature  and  the  pact  of  society  had  no 
existence,  from  the  mere  fact  that  no  account  of  these  j 
phenomena  is  preserved,  would  be  logically  no  more 
sound  than  to  conclude  that  the  soldiers  of  Xerxes 
were  never  children  because  we  have  no  record  of  their 
childhood.1  So  far  as  historical  accounts  of  the  origin 
of  commonwealths  exist,  they  support,  Locke  main- 
tains, the  theory  of  contract.  Eome,  Venice  and 
Sparta  are  fair  illustrations  of  this,  and  the  American 
Indians  afford  additional  confirmation  so  far  as  exist- 
ence in  a  non-political  condition  is  concerned.  The 
monarchies  which  history  shows  to  be  so  character- 
istic of  primitive  times  are,  according  to  Locke, 
merely  expressions  of  the  importance  of  military 
leadership  in  those  times,  and  signify  nothing  as  to 
the  origin  of  the  communities.  Even  the  early 
patriarchal  governments  furnish  so  many  instances 
of  deviation  from  the  strict  hereditary  succession, 
that  choice  must  have  entered  into  the  installation 
of  rulers,  and  thus  the  agreement  of  the  people  must 
have  corne  into  play. 

From  the  point  of  view  of  the  individual,  consent 


1  "  It  is  with  commonwealths  as  with  particular  persons.  They 
are  commonly  ignorant  of  their  own  births  and  infancies;  and  if 
they  know  anything  of  it  they  are  beholden  for  it  to  the  accidental 
records  that  others  have  kept  of  it."  —  Ibid.,  sec.  101. 


352  POLITICAL   THEORIES 

/to  membership  in  any  political  Community  may  be, 
'Tjocke  holds,  either  express  or  tacit.  The  tacit  con- 
ent  is  given  by  the  mere  act  of  remaining  person- 
lly  in  the  community  or  of  holding  property  therein. 
One  who  unites  with  a  society  in  this  manner  may 
>y  ceasing  his  connection  with  the  community  tacitly 
vithdraw  his  tacitly  given  consent  to  fellowship  with 
t ;  but  one  who  has  by  express  declaration  given  his 
:onsent  to  be  a  member  of  the  commonwealth,  "  is 
>erpetually  and  indispensably  obliged  to  be  and 
emain  unalterably  a  subject  to  it  and  can  never 
>e  again  in  the  liberty  of  the  state  of  nature  unless 
y  any  calamity  the  government  he  was  under  comes 
to  be  dissolved."  1 

On  the  whole,  Locke's  doctrine  as  to  the  social 
contract  embodies  in  its  essential  features  nothing 
that  had  not  been  worked  out  by  preceding  philoso- 
phers. It  does,  however,  give  to  the  conception  a 
high  degree  of  definiteness  and  moreover  brings  into 
peculiar  prominence  its  individualistic  implications. 
^  Where  Hobbes  and  Pufendorf  had  analyzed  the  for- 
mula of  political  union  in  order  to  make  govern- 
^  mental  authority  absolute,  Locke  laboured  primarily 
v  to  establish  its  limitations.  Of  this  difference  there 
is  impressive  evidence  in  the  fact  that  the  conception 
of  sovereignty,  which  the  earlier  writers  were  at 
such  great  pains  to  elucidate,  received  only  the  most 
casual  notice  in  his  constructive  treatise.  The  term 
itself  he  does  not  use  at  all,  and  the  idea  of  unre- 
stricted power  in  any  human  hands  finds  no  place  in 

1  Treatises,  II,  sec.  121. 


THE   COMMUNITY   SUPREME  853 

his  theory.1     So  far  as  sovereignty  is  predicated  by 
Locke,  in  fact,  if  not  in  name,  of  any  political  entity, 
it  is  ascribed  to  the  collective  body  which  is  created 
by  the  social  pact.     Not  as  a  part  of  the  machinery 
of  government,  but  as  that  which  underlies  govern- 
ment and  becomes  active  only  when  government  is 
dissolved,  the  "  community  "  is  held  to  be  always  the 
supreme  power ;  and  in  last  instance  it  is  the  "  public  j 
will  of  the  society  "  to  which  alone  the  members  owe 
obedience.     "  The  essence  and  union  of  society  "  con- 
sist, Locke  holds,  in  " having  one  will";2  and  su-  j 
premacy,  therefore,  belongs  to  that  which  is  in  the  / 
fullest  sense  the  embodiment  of  this  will.     In  a  less/ 
complete  sense  the  organ  for  the  expression  of  the 
will,  namely,  the  legislative  branch  of   the  govern- 
ment, he  also  designates  as  "supreme." 

Having  accounted  sufficiently  for  the  sovereignty 
in  the  process  through  which  political  society  comes 
into  existence,  Locke  proceeds  to  the  discussion  of 
the  institutions  through  which  the  ends  of  political 
society  are  actually  attained  —  the  institutions,  that  is, 
of  the  government  as  distinct  from  the  state.  Though 
philosophizing  always  with  pretty  obvious  reference  to 
the  conditions  in  England,  he  develops,  nevertheless,  in 
connection  with  this  part  of  his  subject  certain  prin- 
ciples that  are  distinctly  original  in  conception  and 
that  have  been  very  influential  in  later  application. 

1  "  Absolute  arbitrary  power,  or  governing  without  settled  standing 
laws,  can  neither  of  them  consist  with  the  ends  of  society  and  govern- 
ment."—  Ibid.,  sec.  137. 

2  Ibid.,    sees.    151,    212.      In   these    passages    Locke   adumbrates 
Rousseau's  famous  doctrines  of  the  volonte  generate. 

VOL.  II. 2  A 


354  POLITICAL  THEORIES 


5.    Government  :  Separation  of  Powers  " 

The  ends  for  which  civil  or  political  society  is  con- 
stituted being  perfectly  definite,  the  means  for  the 
attainment  of  these  ends  are,  according  to  Locke, 
correspondingly  definite.  Life,  liberty  and  property 
are  to  be  made  secure,  first,  by  providing  a  standard 
)  interpretation  of  the  law  of  nature  which  fixes  these 
rights  ;  second,  by  providing  an  impartial  authority  to 
)  apply  this  interpretation  as  between  individual  mem- 
jbers  of  the  given  community  ;  and  third,  by  providing 
Ifor  the  employment  of  the  force  of  the  community  in 
J  executing  the  judgments  of  this  authority  and  in  re- 
ipelling  aggressions  by  other  communities.  The  only 
(interpretation  of  the  law  of  nature  which  can  at  all 
accomplish  its  purpose  is  that  which  is  embodied  in 
fixed  and  general  rules  applicable  uniformly  to  all 
the  members  of  the  given  society.  An  interpretation 
by  arbitrary  decree  for  each  question  as  it  arises,  no 
matter  from  how  august  a  source  the  decrees  might 
emanate,  would  make  civil  life  indistinguishable  from 
that  in  the  state  of  nature  ;  since  uncertainty  as  to 
the  precise  extent  to  which  life,  liberty  and  property 
were  secure,  would  prevail,  and  this  is  the  very 
fact  that  makes  the  state  of  nature  intolerable  and 
drives  men  to  escape  from  it.1  Legislation,  there- 
fore, —  the  formulation  of  the  rules  according  to 
which  man's  natural  rights  are  to  be  judged,  —  is 
fundamental  and  primary  function  of  govern- 

1  Treatises,  II,  sec.  136. 


'  ment. 


FORMS  OF  GOVERNMENT  355 

Logically  secondary  to  this  function,  but  practi- 
cally quite  as  indispensable,  is  that  of  enforcing  by 
penalties  the  prescriptions  embodied  in  the  laws. 
This  is  the  executive  side  of  governmental  activity. 
Distinguishable~~fr6m~this  again,  because  concerned 
with  problems  characteristic  of  a  state  of  nature 
rather  than  a  civil  state,  is  the  function  of  maintain- 
ing the  interests  of  the  community,  or  of  its  individual 
citizens,  in  relation  to  other  communities  and  other 
citizens,  and  for  this  phase  of  governmental  duty 
Locke  suggests  the  name  "  federative."  * 

As  the  legislative  is  the  supreme  power  in  the  gov- 
ernment, the  various  forms  of  government  are  dis- 
tinguished solely  by  the  depositary  of  this  power.  If 
the  community  as  a  whole  retains  in  its  own  hands 
the  making  of  laws,  and  merely  designates  magis- 
trates  to  execute  them,  the  government  is  a  democ- 
racy. If  the  community  by  a  majority  vote  places 
the  lawmaking  power  in  the  hands  of  a  few  select 
men,  or  of  a  single  individual,  the  form  is  oligarchy 
or  monarchy  respectively ;  and  the  particular  terms 
by  which  the  exercise  and  transmission  of  the  power 
are  regulated  account  for  the  various  mixed  forms 
that  are  known  to  political  speculation.  With  all  the 
possibilities  of  variety  in  forms  of  government,  no 
possibility  is  recognized  by  Locke  of  more  than  one 
species  of  state,  or  "  commonwealth,"  as  he  prefers  to 

1  "  This  .  .  .  contains  the  power  of^ar  and  peace,  leagues  and 
alliances,  and  all  the  transactions  with  all  persons  and  communities 
without  the  commonwealth;  and  may  be  called  federative  if  any  one 
pleases.  So  the  thing  be  understood,  I  am  indifferent  as  to  the 
name."  —  Ibid.,  sec.  14G. 


356  POLITICAL  THEORIES 

call  it.1  The  body  politic  which  is  constituted  by  the 
social  pact  is  the  only  entity  to  which  the  term  "  state  " 
or  commonwealth,  as  distinct  from  government,  can 
be  applied.  This  idea,  in  the  form  in  which  Locke 
works  it  out,  is  a  novelty  in  political  philosophy. 
The  nearest  approach  to  it  in  earlier  systematic 
thought  is  probably  the  doctrine  of  popular  sov- 
ereignty that  was  formulated  by  Althusius.2 

Another  feature  of  his  exposition  of  government  in 
which  Locke,  though  influenced  obviously  enough  by 
the  actual  conditions  in  England,  is  nevertheless  on 
new  ground  so  far  as  theory  is  concerned,  is  that  in 
which  he  sets  forth  the  doctrine   of   the  separation 
of  powers.3    The  making  of  laws  and  the  execution 
of  them  are  functions,  he  argues,  that  make  very  dif- 
ferent demands  upon  those  to  whom  they  are  respec- 
tively intrusted.     The  legislature  may  do  all  its  work 
in  a  relatively  little  time,  whi]e  the  executive  must 
be  always  on  duty.     Hence  the  two  functions  may 
properly  be  assigned  to  distinct  organs.     Moreover,  it 
is  unwise  to  give  to  those  who  make  the  laws  the 
duty  of  executing  them,  because  "  they  may  exempt 
themselves  from  obedience  to  the  laws  they  make  and 
r  suit  the  law,  both  in  its  making  and  its  execution,  to 
I  their  own  private  wish,  and  thereby  come  to  have  a 
i  distinct  interest  from   the   rest   of   the   community, 
\  contrary   to  the   end  of   society   and   government/' 

1  "  By  commonwealth,  I  must  be  understood  all  along  to  mean, 
not  a  democracy  or  any  form  of  government,  but  any  independent 
community,   which    the    Latins    signified    by   the   word    civitas"  — 
Treatises,  II,  sec.  133. 

2  Supra,  p.  63.  8  Treatises,  II,  chap.  xii. 


SEPAKATION  OF  POWERS  357 

V 

For  both  these  reasons  the  two  powers  are  in  distinct 
hands  "  in  all  moderated  monarchies  and  well-framed 
governments."  1  Between  the  executive  and  the  fed- 
erative function,  also,  there  is  a  marked  distinction  in 
kind  which  would  suggest  that  they  be  intrusted  to 
different  organs.  But  this  is  not  done,  Locke  says, 
because  each  requires  the  armed  force  of  the  com- 
munity for  its  action,  and  evil  results  would  follow  if 
the  command  of  this  force  should  be  divided. 

The  constitution  and  interaction  of  the  legislative 
and  executive  organs  are  discussed  at  length  by  Locke 
in  terms  of  perfect  generality,  but  nevertheless  with 
obvious  reference  to  the  controversies  in  English 
politics.  The  legislative  power  should  be  vested,  he 
thinks,  in  a  number  of  persons  who  exercise  it  when 
they  are  duly  assembled  together,  but  became  subject 
to  the  laws  they  have  made  as  soon  as  they  have  sep- 
arated ;  "  which  is  a  new  and  near  tie  upon  them  to 
take  care  that  they  make  them  for  the  public  good." 
Where  one  element  of  the  legislative  body  consists  of 
representatives  chosen  by  the  people,  it  must  be  pre- 
sumed that  the  people  intend  that  the  representation 
should  be  fair  and  equal;  therefore,  Locke  argues/ 
the  absurdities  of  rotten  boroughs  2  may  properly  be 
abolished  by  executive  power  pure  and  simple.  How 


sec.  159. 

2  "  To  what  gross  absurdities  the  following  of  custom,  when 
reason  has  left  it,  may  lead,  we  may  be  satisfied  when  we  see  the 
bare  name  of  a  town,  of  which  there  remains  not  so  much  as  the 
ruins,  where  scarce  so  much  housing  as  a  sheep-cote  or  more  in- 
habitants than  a  shepherd  i$  $o  be  found,  sends  as  many  represent- 
atives to  the  grand  assembly  of  lawmakers  as  a  whole  county 
numerous  in  people  and  powerful  in  riches."  —  Ibid.,  sec.  157. 


358  POLITICAL  THEORIES 

pressing  the  need  of  Parliamentary  reform  appeared 
to  the  philosopher  is  clearly  indicated  by  this  ascrip- 
tion of  far-reaching  discretion  to  the  monarch ;  for 
in  all  other  respects  Locke  is  of  course  a  particularly 
strong  anti-prerogative  man. 

As  between  the  legislative  and  the  other  organs  of 
government,  the  former  is  necessarily,  he  holds,  su- 
preme. It  is  the  instrument  through  which  the  will  of 
the  society  is  expressed,  and  the  expression  of  this  will 
necessarily  precedes  and  determines  the  execution  of  it. 
Though  the  holder  of  the  chief  executive  power  may 
be  at  the  same  time  one  element  in  the  legislative,  and 
though  by  custom  or  expediency  he  may  be  vested 
with  important  functions  in  connection  with  the 
actual  work  of  the  legislature,  yet  these  facts  cannot 
be  interpreted  as  exalting  the  executive  above  the 
legislative  power.  All  the  various  issues  that  had 
been  conspicuous  in  the  long  struggle  in  England  are 
resolved  by  Locke  in  favour  of  the  contention  of 
Parliament.1 

As  to  Locke's  treatment  of  the  separation  of 
powers,  it  is  to  be  observed  that  he  merely  suggests 
the  principle  as  useful  in  determining  the  relations  of 
legislature  and  executive.  The  tripartite  separation 
which  is  familiar  to-day  and  the  justification  of  this 
separation  on  the  ground  of  the  mutual  checks  which 
it  calls  into  play  have  no  place  in  tfye  speculation  of 
Locke,  but  owe  their  development  to  the  genius  of 
the  Frenchman  who  so  effectively  expanded  the  Eng- 
lish philosopher's  suggestion. 

1  Treatises,  II,  chap.  xiii. 


JOHN  LOCKE  359 

6.    The  Eight  of  Revolution 

In  previous  chapters  we  have  noticed  the  efforts  of 
political  philosophers  to  discover  an  ultimate  and  un- 
questionable embodiment  of  governmental  authority 
from  whose  will  no  appeal  could  righteously  be  made. 
A  determinate  human  sovereign  had  been  the  logical 
goal  of  all  the  anti-revolutionary  writers  —  a  man  or 
body  of  men,  forming  part  of  the  machinery  of  gov- 
ernment, whose  expressed  will,  being  law,  was  in 
both  the  legal  and  the  moral  sense  binding  upon 
every  member  of  an  organized  society.  Bodin,  Hobbes 
and  Filmer  had  all  worked  with  this  aim  and  had 
defended  their  preference  for  monarchy  on  the  ground 
that  doubt  and  uncertainty  as  to  what  was  really  the 
sovereign's  will  were  less  likely  when  the  sovereign 
was  an  individual  than  when  it  was  a  group  of 
individuals.  Locke,  while  following  these  thinkers 
in  their  doctrine  of  the  supremacy  of  law,  as  the 
essential  element  in  government,  refuses,  however, 
to  recognize  in  any  determinate  human  organ  an 
incontrovertible  lawmaking  authority.  He  rejects, 
in  other  words,  the  conception  of  sovereignty  as  it 
had  been  developed  by  Hobbes  and  lapses  back  into 
the  vagueness  and  uncertainty  of  the  Grotian  school 
of  thinking. 

That  Locke  has  no  far-reaching  theory  of  sover- 
eignty is  suggested  by  the  fact,  already  mentioned, 
that  the  term  itself  is  not  used  in  his  systematic  work. 
As  the  conventional  and  indeed  strictly  official  desig- 
nation of  the  authority  that  attaches  specifically  to  a 


360  POLITICAL  THEORIES 

monarch,  its  implications  are,  of  course,  such  as  the 
philosopher  is  careful  to  avoid.  The  question  as  to 
where  the  "  supreme  power  "  in  the  commonwealth 
rests,  is,  however,  raised  and  discussed  at  length.  As 
between  the  different  departments  of  the  government, 
the  legislative  is,  as  we  have  seen,  held  to  be  necessa- 
rily supreme.  Its  supremacy  does  not  mean,  however, 
anything  like  absoluteness.  The  legislature  is  limited 
by  the  ends  for  which  the  civil  society  is  constituted, 
and  has  no  more  power  than  that  which  is  given  up 
by  the  individual  in  the  social  compact.  It  is  bound, 
therefore,  to  rule  according  to  the  law  of  nature,  to 
carry  on  its  functions  through  fixed  and  general  laws 
rather  than  arbitrary  decrees,  and  in  particular  to 
abstain  from  taking  property  without  the  consent  of 
the  owner.1  Furthermore,  the  legislative  organ,  be- 
cause its  authority  is  merely  delegated  by  the  people, 
cannot  transfer  this  authority  to  other  hands.  This 
conception  of  a  governmental  power  which,  while  not 
absolute,  is  nevertheless  supreme  in  relation  to  other 
governmental  powers,  is  sufficiently  intelligible  ;  but 
the  extreme  stress  laid  by  Locke  upon  the  sub- 
ordinate nature  of  the  executive  is  hardly  consistent 

1  Treatises,  II,  chap,  xi :  "  Of  the  Extent  of  the  Legislative  Power." 
This  chapter  involves  much  repetition  and  more  or  less  that  is  in- 
consistent and  illogical,  indicating  the  writer's  intentness  on  the  end 
he  has  in  mind  rather  than  the  means  by  which  he  is  to  attain  it. 
His  particular  concern  is  to  deny  to  the  legislature  unlimited  author- 
ity over  private  property ;  and  accordingly,  after  declaring  as  one 
limitation  upon  the  legislature  the  law  of  nature,  of  which  he  has 
repeatedly  shown  the  right  of  property  to  be  substantially  the  chief 
feature,  he  enumerates  the  security  of  private  property  as  another  and 
distinct  limitation  upon  the  legislature.  Sec.  138. 


PEOPLE  ABOVE   GOVERNMENT  361 

with  the  scope  of  prerogative  which  he  himself  allowed 
to  that  branch  of  the  government,  or  with  the  very 
remarkable  doctrine  that  the  executive  may  remodel 
a  legislature  that  has  ceased  to  IJe  fairly  representa- 
tive of  the  people.1 

Behind  this  "  supreme "  legislature,  stands,  in 
Locke's  theory,  a  superior  and  final  embodiment  of 
power,  the  people.  The  authority  of  the  legislative  is 
but  a  trust,  to  be  employed  for  the  needs  for  which 
civil  society  is  constituted,  and  failure  to  fulfil  this  trust 
calls  into  action  the  supreme  power  of  the  people  to 
remove  or  alter  the  legislature.  "  The  community 
perpetually  retains  a  supreme  power  of  saving  them- 
selves from  the  attempts  and  designs  of  anybody,  even 
of  their  legislators,  whenever  they  shall  be  so  foolish 
or  so  wicked  as  to  lay  and  carry  on  designs  against  the 
liberties  and  properties  of  the  subject."2  But  this 
overruling  power  of  the  people  or  the  community^ 
civil  society,  as  he  variously  designates  its  possessor,  is 
conceived  by  Locke  as  ordinarily  dormant,  becoming 
active  only  when  the  government  is  dissolved.  It  is  a 
cardinal  point  in  his  system  .tha^t  government  may  be 
dissolved  while  society  remains  intact,8  and  he  thus  is 
logical  in  ascribing  to  the  latter  an  authority  above  that 
of  the  former.  But  on  the  test  question  as  to  the  pre- 
cise ground  and  manner  in  which  the  society  or  "  the 
people"  is  to  supersede  the  government,  Locke's  an- 
swer is  no  more  satisfactory  than  that  of  the  multitude 
of  popular-sovereignty  theorists  who  preceded  him. 
Government  is  dissolved,  he  declares,  when  the  legis- 

i  Supra,  p.  357.          2  Treatises,  II,  sec.  149.          8  Ibid.,  sec.  211. 


362  POLITICAL  THEORIES 

lature  is  so  transformed  as  to  bring  the  lawmaking 
power  into  hands  other  than  those  to  which  it  was  in- 
trusted by  the  community  at  its  organization,  or  when 
either  legislature  or  executive  acts  contrary  to  its 
trust.1  But  on  the  vital  point  as  to  who  shall  decide 
when  these  dissolving  conditions  exist,  he  has  no  more 
definite  answer  than  "  the  people.' '  No  procedure  is 
provided  through  which  the  judgment  of  the  people 
on  the  issue  is  to  be  arrived  at,  though  Locke  appears 
to  feel  that  no  less  than  a  majority  will  actually  take 
any  decisive  step.2 

This  whole  theory  as  to  the  power  of  society  to 
displace  the  holders  of  governmental  authority  is,  of 
course,  merely  one  version  of  the  so-called  "  right  of 
resistance."  Locke's  phrase  for  designating  this  right 
is  the  "  appeal  to  Heaven,"  which  he  regards  as  the 
privilege  not  only  of  the  body  of  the  people  but  even 
of  any  single  man.  This  seems  hardly  consistent 
with  his  earlier  doctrine  that  the  individual  who 
expressly  makes  himself  a  party  to  the  social  pact 
is  irrevocably  determined  to  be  a  member  of  the 
society  and  as  such  is  concluded  by  the  voice  of  the 
majority.8  The  permanence  of  social  life  seems  to  be 
the  necessary  result  of  the  one  doctrine  and  anarchy 
of  the  other.  Locke,  however,  feels  quite  sure  that 
the  recognition  of  the  "  appeal  to  Heaven  "  does  not 
from  the  practical  point  of  view  involve  anarchy. 
"  The  people  "  are  as  a  rule  "  more  disposed  to  suffer 

1  Treaties,  II,  sees.  212-221  et  seq. 

2  Cf.  sees.  168  and  209. 

8  Compare  sees.  97  and  121  with  sees.  168  and  241. 


LOCKE,  GROTIUS,  PUFENDORF          363 

than  right  themselves  by  resistance."  Only  when 
injustice  and  oppression  have  gone  very  far  and 
have  become  obvious  to  a  majority  of  the  people  will 
the  "  appeal  to  Heaven  "  actually  be  made.  In  both 
the  lack  of  logic  in  his  theory  and  his  serene  con- 
fidence in  the  moderation  of  those  who  may  apply 
it,  Locke  manifests  a  spirit  which  in  a  most  impres- 
sive way  was  characteristic  of  the  Whig  Revolution 
that  he  was  defending. 

7.   Locke's  Place  in  the  History  of  Political  Theory 

Regarded  in  his  relation  to  the  seventeenth  cen- 
tury as  a  whole,  Locke  stands  high  in  that-  group 
of  thinkers  who  promoted  the  rationalistic  idea  of 
life  —  who  preached  that  the  earth  and  all  the 
institutions  thereof  were  made  for  man,  not  man 
for  them,  and  that  whatever  the  importance  of 
unquestioning  faith  in  preparation  for  the  life  to 
come,  the  peace  and  comfort  which  were  sought  by 
man  in  the  present  life  were  to  be  secured  only  by 
the  relentless  application  of  reason  to  all  the  prob- 
lems that  arose. 

As  between  the  two  schools  which  divided  the 
adepts  of  ethical  and  political  philosophy,  Locke 
belonged  with  Grotius  rather  than  with  Hobbes. 
Of  the  two  coetaneous  thinkers  whom  we  have 
noticed,  he  was  nearer  to  Pufendorf  than  to  Spinoza, 
although  his  discussion  of  individual  liberty  is  often 
singularly  suggestive  of  the  latter.  As  the  works  of 
Pufendorf  and  Spinoza  had  been  before  the  world  of 
scholarship  for  many  years  when  Locke  published  his 


364  POLITICAL  THEORIES 

political  writings,  and  as  Locke  was  peculiarly  fa- 
miliar with  current  philosophy,  there  is  no  room  to 
doubt  that  the  many  points  of  coincidence  between 
his  theory  and  theirs  were  the  results  of  conscious 
adoption.  Where  he  departs  from  his  predecessors 
and  strikes  out  on  new  lines  of  thought,  the  condi- 
tions of  English  practical  politics  are  in  most  cases 
clearly  responsible. 

The  most  distinctive  contribution  of  Locke  to 
political  theory  is  his  doctrine  of  natural  rights.  In 
this  he  takes  the  ideas  of  the  Independents :  and  gives 
them  a  fundamental  position  in  his  general  system. 
Life,  liberty  and  property  he  represents  as  inalienable 
rights  of  every  individual.  The  peculiarity  of  his 
treatment  of  this  familiar  concept  is  in  the  definite- 
ness  with  which  these  rights  are  made  to  appear  as 
the  concrete  privileges  of  actual  living  men.  In 
the  law  of  nature  as  treated  by  Pufendorf,  and  in  the 
liberty  that  is  eulogized  by  Milton  and  Spinoza,  there 
is,  despite  the  purpose  of  the  writers  to  set  up  real 
barriers  to  despotism,  a  general  effect  of  abstraction 
and  unreality,  or  at  best  an  impression  that  the  im- 
munity that  is  aimed  at  must  be  the  privilege  of 
only  very  wise  and  exceptional  men,  not  of  every 
ordinary  mortal.  Locke's  equal  rights,  on  the  other 
hand,  are  so  inwrought  in  his  explanation  of  political 
institutions  as  to  appear  indispensable  to  the  very 
existence  of  an  actual  political  community.  The 
happiness  and  security  of  the  individual  figure,  not 
as  essential  to  the  perpetuity  of  a  government,  but  as 

1  Supra,  p.  236. 


LOCKE  ON  TOLERATION  365 

the  end  for  which  alone  government  is  ever  called 
into  existence. 

Freedom  of  worship  is  not  included  by  Locke 
strictly  within  the  list  of  natural  rights.  It  is  not 
one  of  those  privileges  of  the  individual  for  th 
defence  of  which  government  is  instituted.  His  plea 
for  toleration  rests  rather  on  the  doctrine  that  th( 
state  has  nothing  whatever  to  do  with  forms  o: 
worship.  The  worship  of  God  is  a  means  to  eterna 
salvation,  and  as  such  lies  entirely  outside  the  sphere 
of  the  state.  The  organization  which  takes  care  o: 
that  matter  is  the  church  and  the  spheres  of  church 
and  state  are  mutually  exclusive.  For  his  definition 
of  a  church  Locke  adopts  in  full  the  idea  of  the  Inde- 
pendents :  It  is  "  a  voluntary  society  of  men  joining 
themselves  together  of  their  own  accord  in  order  to 
the  public  worshipping  of  God  in  such  a  manner  as 
they  judge  acceptable  to  Him,  and  effectual  to  the 
salvation  of  their  souls."  *  With  such  an  extreme 
and  uncompromising  conception  of  religious  society 
he  has  110  difficulty  in  establishing  its  absolute  dis- 
tinction from  a  civil  society  and  in  removing  from 
the  jurisdiction  of  the  latter  everything  that  pertains 
to  the  care  of  souls.  The  commonwealth,  whose 
function  is  to  provide  for  the  material  and  temporal 
security  of  its  members,  is  limited  strictly  to  what 
concerns  that  matter  and  is  bound  by  the  nature  of 
its  being  to  permit  men  to  seek  their  future  salvation 
in  any  manner  they  choose.  Not  only  Presbyterians, 
Independents,  Anabaptists,  Arminians  and  Quakers, 

1  Letter  concerning  Toleration. 


366  POLITICAL  THEORIES 

but  even  Pagans,  Mohammedans  and  Jews  are  by 
right  entitled  to  the  same  civil  privileges  as  those 
of  the  more  orthodox  manner  of  worship.  The 
comprehensive  toleration  thus  established  by  Locke 
is  sustained  by  the  same  rationalistic  reasoning  that 
Milton  had  employed,  and  the  only  qualifications 
introduced  are  three  that  are  based  on  strictly  politi- 
cal considerations :  first,  there  need  be  no  toleration 
of  opinions  that  militate  against  the  existence  of 
civil  society  or  contravene  the  principles  of  morality 
on  which  society  rests  —  a  qualification  that  had 
been  laid  down  by  Spinoza ; 1  second,  no  right  of 
toleration  can  be  claimed  by  a  church  so  organized 
that  its  members  are  subject  to  another  prince  —  a 
familiar  principle  on  which  Catholics  were  excluded ; 
and  third,  there  is  to  be  no  toleration  of  atheists, 
since  "  promises,  covenants  and  oaths,  which  are  the 
bonds  of  human  society,  can  have  no  hold  on  an 
atheist." 2 

In  this  doctrine  of  religious  toleration  Locke 
hardly  reaches  so  advanced  a  point  as  that  attained 
by  Spinoza,  or  even  Milton,  in  their  pleas  for  freedom 
of  opinion.  His  purpose,  indeed,  is  more  restricted 
than  theirs,  and  he  strives  only  to  make  a  case  for 
freedom  of  worship,  although  a  general  toleration  of 
expression  is  implied  at  some  points  in  his  argument. 
It  is  quite  characteristic  of  Locke,  however,  to  pause 
before  reaching  the  extreme  point  in  the  logical 
development  of  a  theme.  Moderation  and  the  avoid- 
^  ance  of  extremes  is  eminently  his  chief  philosophical 

1  Supra,  p.  315.  2  Letter  concerning  Toleration. 


LOCKE'S  MODERATION  -(367 

^   - 

quality,  showing  itself  in  the  political  as  well  as 
the  other  branches  of  his  thinking.  He  has  none 
of  that  confidence  which  Hobbes  and  Spinoza  mani- 
fest in  the  capacity  of  the  human  intellect  and  judg- 
ment for  the  solution  of  all  the  problems  that  human 
conditions  can  suggest.  Probable  truth  rather  than 
absolutely  certain  truth  is  the  ultimate  goal  that 
he  has  in  view  in  his  general  philosophy,  and 
similarly  a  practical  working  system  rather  than  an 
absolutely  perfect  one  is  the  goal  of  his  political 
philosophy.  This  was  indeed  the  goal  of  the  Revolu- 
tion of  1688.  The  memory  of  many  participants  in 
the  movement  retained  most  vivid  impressions  of 
the  consequences  of  extreme  proceedings  forty  years 
earlier,  and  these  men  were  successful  in  giving 
a  wholly  opportunist  character  to  the  procedure. 
Locke's  political  theory  corresponded  to  this  Whig- 
gish  practical  work.  It  was  a  theory  treating  of  a 
state  of  nature  that  was  not  altogether  bad,  and  its 
transformation  into  a  civil  state  that  was  not  alto- 
gether good,  by  a  contract  which  was  not  very  pre- 
cise in  its  terms  or  very  clear  in  its  sanction.  It 
embodied,  moreover,  a  conception  of  sovereignty  of 
the  people  without  too  much  of  either  sovereignty  or 
people ;  of  the  law  of  nature  that  involved  no  clear 
definition  of  either  law  or  nature ;  of  natural  rights, 
but  not  too  many  of  them;  and  of  a  separation  of 
powers  that  was  not  too  much  of  a  separation.  It 
concluded,  finally,  with  a  doctrine  as  to  the  right  of 
revolution  that  left  no  guarantee  whatever  for  the 
permanence  of  the  rather  loose-jointed  structure 


368  POLITICAL  THEORIES 

which  the  rest  of  the  theory  had  built  up.  Yet  this 
illogical,  incoherent  system  of  political  philosophy 
was  excellently  adapted  to  the  constitutional  system 
which  England  needed  at  that  time  and  which  the 
Whigs  actually  put  and  kept  in  operation.  It  was 
a  good,  respectable,  common-sense  view  of  the  fea- 
tures of  political  life  that  impressed  a  philosophical 
observer ;  it  was  strong  in  the  individual  parts,  if  not 
in  their  correlation,  and  it  was  far  better  adapted 'to 
make  an  impression  on  thinking  Englishmen  than 
were  the  more  logical  systems  of  Hobbes  and  Spinoza. 
It  was  Locke's  theory  that  was  brought  over,  sup- 
ported by  the  practical  illustration  of  the  accom- 
plished Revolution,  to  the  Continent,  where  many  of 
its  elements  were  taken  up  and  developed  to  their 
logical  limits  by  the  thinkers  of  France.  The 
systems  which  resulted  in  the  revolutionary  period 
there  are  hardly  more  satisfactory,  in  the  perspective 
of  history  at  least,  than  the  less  coherent  doctrine 
which  was  set  forth  by  the  Englishman. 

SELECT  REFERENCES 

BLUNTSCHLI,  Geschichte,  pp.  198-214.  FRANCK,  Reforma-\ 
teurs  et  Publicities,  XVIII™  sieclet  1-66.  GOOCH,  English  ( 
Democratic  Ideas  in  the  Seventeenth  Century,  chap.  x. 
GRAHAM,  English  Political  Philosophy,  pp.  50-87.  HALLAM, 
Constitutional  History  of  England,  chap.  xiv.  HUTTON,  The 
English  Church,  1625-1714,  chaps,  xii,  xiii,  xvi.  JANET,  His- 
toire,  II,  193-220.  LOCKE,  Works,  Vol.  IV,  pp.  207-485 
(Treatises  on  Government)  ;  Vol.  V,  pp.  1-58  (Letter  concerning 
Toleration).  KANKE,  History  of  England,  Vol.  IV.  RITCHIE, 
Darwin  and  Hegel,  pp.  178-226.  STEPHEN,  English  Thought 
in  the  Eighteenth  Century,  Vol.  II,  pp.  130-151.  SYDNEY, 
Discourses  on  Government. 


CHAPTER  XI 

FROM   LOCKE    TO    MONTESQUIEU 

1.   Intellectual  and  Political  Conditions 

AFTEK  Locke's  Treatises  on  Government,  more  than 
half  a  century  elapsed  before  a  work  on  political 
theory  appeared  that  could  be  compared  with  Locke's 
in  respect  of  either  scientific  spirit  or  far-reaching 
influence.  Montesquieu's  Spirit  of  the  Laws,  pub- 
lished in  1748,  closed  the  long  gap  in  the  progress 
of  systematic  politics;  its  author  was  born  (1689) 
while  Locke  was  writing  the  Treatises  on  Govern- 
ment. That  either  practical  politics  or  political 
debate  had  languished  during  this  interval  is  of 
course  very  far  from  true,  but  both  the  practice  and 
the  debate  of  the  time  were  either  far  above  or  far 
below  the  level  at  which  political  philosophy  proper 
finds  its  greatest  inspiration. 

On  the  Continent  the  questions  which  excited  the 
interest  and  activity  of  publicists  were  the  questions  \ 
of  international  relations  centring  about  the  balance  I 
of  power.     Louis  XIV,  who  was  at  the  height  of  his^ 
glory   when    Locke   wrote,    perceptibly   declined    in 
greatness  during  the  remaining  quarter   century  of 
his  reign,  and  this  decline  was  chiefly  indicated  by 
the  tremendous  conflict  over  the  Spanish  succession 
which  absorbed  so  much  intellectual  energy  in  mili- 

VOL.  ii.  —  2s  369 


370  POLITICAL  THEORIES 

tary,  naval  and  diplomatic  problems  involving  the 
whole  world.  The  partial  adjustment  reached  by  the 
Peace"  of  Utrecht  in  1713  was  far  from  terminating  \ 
the  ambitions  and  jealousies  of  the  great  powers  or 
the  terror  of  the  lesser  powers,  and  warfare,  poten- 
tial or  actual,  prevailed  in  Europe  throughout  the 
period  with  which  we  are  dealing.  The  wars  were 
in  conscious  purpose  almost  exclusively  dynastic.  It 
was  for  the  interest  of  the  Hapsburg  or  the  Bourbon 
or  the  Hohenzollern  family,  not  that  of  the  German, 
the  French  or  the  Prussian  people, 'that  the  campaigns 
were  planned  and  carried  on  and  the  treaties  wer 
concluded.  "Where  the  interests  of  agriculture,  com- 
merce or  industry  came  into  play,  as  was  often  the 
case,  they  were  regarded  from  the  point  of  view  not 
of  the  farmers,  merchants  or  manufacturers,  but  of 
the  monarch  to  whom  the  profits  of  these  classes 
paid  tribute.  The  complete  identification  of  the 
state  with  the  monarch  and  of  the  interests  of  the 
subject  with  the  particular,  narrow,  personal  and 
dynastic  interests  of  the  ruler,  left  little  room  for  any 
political  philosophy  save  that  which  was  incidental 
to  the  diplomatic  intercourse  of  governments.  The 
principles  of  international  law,  which  through  Gro- 
tius  and  Pufendorf  had  attained  such  full  develop- 
ment, received  much  addition  and  some  extension 
during  this  period.  But  those  principles  lay  much  ' 
more  in  the  fields  of  ethics  and  jurisprudence  than  in 
the  field  of  politics ;  they  were  above  the  level  on 
which  political  philosophy  proper  does  its  work. 
Below  that  level,  on  the  other  hand,  there  was  in 


ENGLISH  PARTY  POLITICS  371 

one  European  nation,  though  not  on  the  Continent,  a 
very  great  activity  during  the  period  with  which  we 
are  dealing.  Great  Britain  displayed  after  the  Revo- 
lution of  1688  a  remarkable  development  of  that  \ 
species  of  politics  which  is  involved  in  the  conflict  of  / 
parties.  During  the  reign  of  William  and  Mary  and 
that  of  Anne  Parliamentary  government  became  defini- 
tively established  in  England.  The  monarch  made  no 
attempt  to  govern  without  the  annual  meeting  of  Par- 
liament, or  without  ministers  who  could  command  the 
support  of  the  two  houses.  In  the  selection  of  minis- 
ters the  monarchs  strove  consistently  to  disregard  dis- 
tinctions of  party,  but  the  trend  of  events  made  their 
efforts  increasingly  unsuccessful.  For  the  accomplish- 
ment of  the  revolution  Whigs  and  Tories  had  coalesced, 
but  soon  after  success  was  assured  the  lines  dividing  the 
parties  began  again  to  be  manifest  in  Parliament  and 
in  the  country  at  large.  These  lines  were  only  vague 
and  were  crossed  by  many  powerful  currents  of  in- 
terest and  tradition  among  the  great  families  that  fur- 
nished the  political  leaders  of  the  day ;  yet  with  ever 
increasing  certainty  the  choice  of  ministers  and  the 
corresponding  divisions  of  Parliament  came  to  be  deter- 
mined by  considerations  of  party.  Probably  the  most 
potent  cause  operating  to  promote  this  tendency  was 
the  question  of  the  succession  to  the  crown.  The  sen-\ 
timent  in  favour  of  the  return  of  the  Stuarts,  as  the 
legitimate  line  by  divine  right,  was  a  distinctively 
Tory  characteristic;  and  the  Hanoverian  Protestant 
succession  was  distinctively  Whiggish.  On  this  issue 
the  Whigs  won  a  decisive  triumph  at  the  death  of 


372  POLITICAL  THEORIES 

Queen  Anne  in  1714,  and  until  after  Jacobitism  had 
been  finally  extinguished  in  the  bloodshed  of  Culloden 
in  1745,  no  Tory  government  came  to  power. 

During  this  long  ascendency  of  the  Whigs  —  the 
era  of  Walpole  —  the  philosophical  principles  which 
had  differentiated  the  two  parties  gradiially  faded 
into  insignificance.  Under  the  leadership  of  such 
cynical  minds  as  Bolingbroke  and  Swift  the  Tories 
ceased  to  stress  the  divine  right  of  the  old  line  to 
return ;  and  in  the  long  enjoyment  of  power  through 
harmonious  relations  with  the  first  two  Hanoverian 
kings,  the  Whigs  abandoned  their  attitude  of  distrust 
toward  the  royal  authority.  The  old  party  names 
were  in  fact  displaced  by  two  that  more  distinctly 
indicated  the  actual  divisions  between  them,  viz., 
Court  Party  and  Country  Party;  and  all  the  con- 
tests between  them  came  to  turn  almost  exclusively 
upon  the  pursuit  of  public  office  with  its  dignity  and 
emolument.  The  two  parties  vied  with  each  other 
in  protestations  of  respect  for  the  Kevolution  of  1688, 
and  of  acceptance  of  the  constitutional  order  )vhich 
had  grown  out  of  that  event.  What  exactly  this 
order  was,  and  whether  the  party  in  power  was  in 
full  conformity  to  it,  were  the  ultimate  questions 
debated  in  England.  On  the  Continent  the  ques- 
tions as  to  the  precise  meaning  of  the  Revolution  and 
as  to  the  precise  nature  of  the  English  constitution 
as  modified  by  it,  were  in  large  measure  responsible 
for  the  recrudescence  of  political  philosophy  in  its 
broadest  aspect.  While  the  brilliant  representatives 
of  English  literature  at  this  time  —  Swift,  Atterbury, 


CONTINENTAL  LIBERALISM  373 

Addison,  Steele  and  the  others  —  turned  their  genius 
to  the  discussion  of  petty  incidents  of  the  struggle 
for  power  and  temporary  issues  of  trade  and  finance, 
foreign  observers  like  Voltaire  and  Montesquieu  went 
below  the  surface  and  sought  in  the  basal  principles 
of  the  English  constitution  the  foundation  for  a  politi- 
cal system  of  universal  validity. 

While  the  conditions  of  English  constitutional  life 
thus  furnished  the  material  for  a  revival  of  political 
philosophy,  the  impulse  to  make  use  of  this  material 
sprang  from  a  notable  expansion  of  the  liberalizing 
spirit  in  all  branches  of  intellectual  activity  on  the 
Continent.  The  movement  was  very  widespread, 
but  found  its  most  striking  manifestation  in  France. 
After  the  death  of  Louis  XI Y  in  1715  the  re- 
straints imposed  by  the  obscurantist  interests  at 
court  were  much  relaxed,  and  though  nothing  like 
freedom  of  expression  was  permitted,  the  writings 
of  Fenelon,  the  Abbe  St.  Pierre,  and  the  Marquis 
d'Argenson  evinced  a  tendency  diametrically  opposed 
to  that  which  was  involved  in  the  teachings  of  Bos- 
suet,  while  the  remarkable  activity  of  Voltaire,  who 
was  in  the  maturity  of  his  powers  at  the  middle  of 
the  century,  suggests  in  a  word  the  new  trend  of 
intellectual  life.  In  Germany  Thomasius  and  Wolff 
carried  on  a  rather  unequal  contest  with  the  ruling 
theological  influences  at  the  courts  of  the  petty 
princes  of  the  Protestant  states,  but  with  the  acces- 
sion of  Frederick  II  to  the  throne  of  Prussia  in  1740 
the  influence  of  this  greatest  of  the  North  German 
principalities  was  thrown  decisively  into  the  scale 


374  POLITICAL  THEORIES 

in  favour  of  the  liberals.  Meanwhile,  at  the  other 
extreme  of  Europe,  in  the  hopelessly  reactionary 
kingdom  of  Naples,  a  thinker  of  peculiarly  original 
genius,  Vico,  produced  a  philosophical  system  which, 
though  dealing  only  incidentally  with  political  science, 
is  worthy  of  notice  as  illustrating  the  wide  range 
and  the  profound  effect  of  the  intellectual  conditions 
which  contributed  so  largely  to  the  later  develop- 
ments of  the  eighteenth  century. 

Both  the  trend  of  politics  in  England  and  the 
general  movement  of  philosophy  on  the  Conti- 
nent were  traceable  in  no  small  measure  to  the 
influence  of  Locke.  Both  also  were  intimately  con- 
cerned in  the  political  theory  of  Montesquieu.  Some 
slight  consideration  then  of  the  ideas  to  be  found  in 
the  fields  most  nearly  related  to  scientific  politics  be- 
tween the  work  of  Locke  and  that  of  Montesquieu 
will  be  useful  in  understanding  the  transition  from 
the  one  great  philosopher  to  the  other. 

2.    German  Theories :   Wolff;  Frederick  the  Great 

In  Germany,  the  gap  between  Locke  and  Montes- 
quieu was  dominated,  so  far  as  politics  proper  was 
concerned,  by  the  voluminous  and  extraordinarily  sys- 
tematic works  of  Johann  Christian  Wolff  (1679-1754). 
Wolff  in  politics  as  in  general  philosophy  contributed 
relatively  little  of  novelty,  but  made  a  very  consider- 
able impression  by  the  exceedingly  great  precision 
with  which  he  formulated  and  organized  his  ideas. 
His  political  doctrines  were  not  different  from  those 
which  through  Grotius  and  Pufendorf  had  been  before 


WOLFF   AND   FREDERICK  375 

the  world  for  several  generations.  Wolff's  system 
was  embodied  in  a  treatment  of  (1)  the  law  of  nature, 
covering  the  whole  matter  of  ethics,  (2)  the  law  of 
nations,  covering  all  the  principles  of  international 
relationships,  and  (3)  politics,  covering  the  theory  of 
the  state.1  His  law  of  nature  (ius  naturce)  was  very 
similar  to  that  of  Pufendorf,  with  some  of  the  modi- 
fications suggested  by  Leibnitz  arid  Thomasius.  The 
doctrines  of  political  bearing  treated  under  this  head 
were  the  familiar  dogmas  of  the  liberty  and  equality 
of  all  men  in  the  state  of  nature,  and  of  the  origin 
of  political  society  in  the  surrender  of  rights  by  the 
individual.  At  the  other  end  of  the  line  his  doctrine 
as  to  sovereignty  and  government  involved  substan- 
tially the  principles  which  culminated  in  the  patri- 
monial state.  It  seems  unintelligible  to-day  tha\ 
Wolff  should  have  been  a  martyr  of  liberalism.  His' 
doctrines  would  not  now  be  put  under  that  category ; 
but  he  was  in  spirit  too  rationalistic  for  the  orthodox 
theologians  of  his  own  time,  and  at  their  instance  in 
1723  he  was  summarily  banished  from  the  Prussian 
dominions  with  only  forty-eight  hours'  notice,  by  the 
choleric  father  of  Frederick  the  Great.  One  of  the 
first  acts  of  Frederick  on  ascending  the  throne  in 
1740  was  to  invite  Wolff  to  return  to  Prussia  for 
the  enjoyment  of  high  academic  honours. 

With  this  act  of  justice  to  a  now  aged  philosopher, 


1  His  comprehensive  work  was  Ius  Naturce  meihodo  scientifica  per- 
tractatum.  The  substance  of  his  theories  may  be  found  in  the  smaller 
works :  Die  Politik  (1721)  and  Institutiones  luris  Naturce  et  Gentium 
(1750). 


376  POLITICAL  THEORIES 

Frederick  confirmed  the  general  impression  that  his 
sympathies  were  with  the  progressive  and  rational- 
istic thought  of  the  time.  Although  this  monarch's 
work,  so  far  as  politics  is  concerned,  is  to  be  found 
chiefly  in  the  field  of  practice,  nevertheless  his  con- 
tributions to  political  philosophy  were  by  no  means 
insignificant.  Long  before  he  ascended  the  throne 
he  had  set  forth  in  a  monograph  on  the  existing  con- 
ditions in  Europe  his  contempt  for  the  obscurantist 
ideas  that  prevailed  in  the  princely  courts  of  the 
times.  He  admonished  the  princes  very  curtly  that 
they  were  not  in  their  position  by  any  special  favour 
of  God,  but  that  they  were  there  by  the  grace 
and  for  the  welfare  of  their  subjects.  In  his  Anti- 
Machiavel,  written  only  the  year  before  he  came  to 
the  throne,  Frederick  again  put  great  stress  on  the 
duties  of  kingship  as  contrasted  with  its  rights.  He 
asserted  roundly  that  a  monarch  is  merely  the  first 
servant  of  the  state;  that  the  justification  for  his 
occupancy  of  the  throne  is  to  be  found  only  in  what 
he  can  contribute  to  the  welfare  of  his  subjects.  For 
the  prevailing  notion,  especially  in  German  principali- 
ties, that  the  people  were  merely  the  private  property 
of  the  prince,  Frederick  had  no  respect  whatever. 
Further,  he  took  Machiavelli  to  task  and  castigated 
him  unmercifully  for  the  doctrine  in  The  Prince  that 
the  ruler  is  not  to  be  bound  by  the  ordinary  princi- 
ples of  morality  in  promoting  the  ends  of  the  state. 
In  this  matter  Frederick  was  soon  put  on  the  defen- 
sive by  his  own  particular  conduct  as  sovereign  and 
was  obliged  to  concede  that  in  practice  at  least,  if 


THE   BRITISH  ESSAYISTS  377 

not    in    theory,   the    doctrine   of    the    Italian   was 
sound. 

In  the  last  year  of  his  life  Frederick  wrote  also  a 
short  but  eminently  sane  Essay  on  Forms  of  Govern- 
ment and  on  the  Duties  of  Sovereigns,1  and  in  this 
as  in  the  earlier  works  he  manifested  his  con- 
sciousness of  the  new  spirit  that  was  at  work  on  the 
Continent,  foreboding  the  Revolution.  By  his  ex- 
traordinary success  in  building  up  the  Prussian  state, 
Frederick  acquired  a  position  in  Europe  which  se- 
cured a  great  influence  for  everything  of  philosophi- 
cal character  that  came  from  his  brain.  It  is  not 
unfair,  therefore,  to  find  in  him  the  most  distin- 
guished representative,  so  far  as  political  philosophy 
is  concerned,  of  the  new  spirit  in  Germany  by  which 
the  doctrines  of  the  era  of  Locke 2  were  carried  over 
to  the  time  of  Montesquieu. 

3.   British  Theory ;   Bolingbroke  and  Hume  *~~" 

In  Great  Britain  the  period  between  Locke  and 
Montesquieu  was  the  heyday  of  the  essayists,  when 
any  one  who  had  anything  to  say  on  the  political, 
social,  literary  or  other  topics  of  the  time,  and  many 
a  one  who  really  had  nothing  to  say  on  these  subjects, 
ventilated  his  thoughts  in  the  periodicals,  for  the 
most  part  weekly,  which  were  the  prevailing  vehicle 
for  public  opinion.  This  literary  form  was  but  ill 
adapted  to  the  presentation  of  any  comprehensive 

1  Posthumous  Works,  translated,  Vol.  V. 

2  Frederick  was  a  great  admirer  of  Locke  and  of  his  philosophy, 
both  in  general  and  in  respect  to  government. 


378  POLITICAL  THEORIES 

and  coherent  philosophy ;  and  among  the  great  num- 
ber of  brilliant  writers  whose  essays  of  this  period 
survive,  Bolingbroke  and  Hume 1  alone  offer  anything 
that  need  detain  the  seeker  after  general  political 
theory.  These  two  writers  had  indeed  little  in  coi 
mon  save  a  radical  hostility  to  the  orthodox  religious 
belief  of  the  day.  In  politics  Bolingbroke  was  thej 
most  vehement  spirit  of  the  Tory  or  Country  Party, 
pursuing  Walpole  with  savage  fury  and  finding  in 
party  strife  the  nation's  salvation ; 2  while  Hume, 
mildly  Whiggisb  if  of  any  party  complexion  what- 

s  ever,  deprecated  party  contention  as  not  only  detri- 

Tnental  to  the  welfare  of  the  nation,  but,  what  was 

'  ?  vworse  in  his  eyes,  unphilosophical  and  incompatible 

with  the  poise  demanded  of  the  serious  seeker  after 

xtruth. 

Yet  despite  the  wide  divergence  in  the  qualities  of 
the  two  men,  they  both  illustrate  the  trend  of  politi- 
cal theory  between  Locke  and  Montesquieu  by  their 

1  Bolingbroke  (1678-1751)  was  a  typical  essayist  of  the  periodical 
school,  his  papers  appearing  in  the  Craftsman.     Hume  (1711-1776) 
designed  his  essays  for  periodical  appearance,  but  they  were  actually 
published  all  together,  the  first  volume  in  1741  and  the  second  a  year 
later.     Thus  though  Hume  was  twenty  years  younger  than  Montes- 
quieu, the  Essays,  which  embodied   Hume's  chief  contribution  to 
political  theory,  antedated  by  seven  years  the  Spirit  of  the  Laws,  which 
was  the  greatest  product  of  the  Frenchman's  philosophy.     For  this 
reason,  as  well  as  for  the  reason  that  Hume's  intellectual  affinity  was 
closer  with  the  older  than  the  younger  of  his  British  contemporaries, 
I  have  considered  him  before  rather  than  after  Montesquieu. 

2  In  the  abstract  Bolingbroke  professed  to  regard  parties  as  detri- 
mental to  a  state;   but  this  theoretical  doctrine  was  wholly  irrec- 
oncilable with  the  principles  which  he  set  forth  in  his  treatment  of 
English  politics,  where  he  proclaimed  incessantly  that  a  party  in 
opposition  to  that  of  Walpole  was  indispensable  to  the  safety  of  the 
nation. 


THE  ENGLISH  CONSTITUTION  379 

comment,  chiefly  incidental,  on  two  topics,  the  Eng- 
lish  constitution  and  the  "  original  contract."  To 
both  thinkers  the  constitution  as  shaped  by  the 
Ke volution  of  1688  appears  a  most  perfect  example 
of  that  mixed  form  of  government  which,  ever  since 
Polybius  and  Cicero,  had  been  so  frequently  eulogized 
by  philosophers.  Its  essential  principles  are  held  to 
be,  as  to  organization,  the  blending  of  monarchic, 
aristocratic  and  popular  elements  in  the  government, 
and  as  to  action,  the  maintenance  of  an  equilibrium 
by  the  reciprocal  checks  of  the  monarch,  the  House 
of  Lords  and  the  House  of  Commons  upon  one  an- 
other.1 Both  Bolingbroke  and  Hume  held  that  the  ' 
liberty  which  was  the  boast  of  Englishmen  could  be^ 
preserved  only  by  preventing  the  undue  preponder-"^ 
ance  of  either  of  these  organs.  The  one  writer  di- 
rected  the  fiercest  assaults  on  Walpole  on  the  ground 
that  the  system  of  Parliamentary  corruption  which 
the  minister  employed  gave  too  much  power  to  the 
crown;  the  other  writer  believed  that  the  practices 
of  Walpole  were  in  a  measure  justifiable  as  a  means  \ 
of  preserving  the  power  of  the  crown  from  the  en-  / 
croachments  of  the  House  of  Commons.2  This  doc- 
trine of  the  mixed  form  of  government  and  the  check 
and  balance  system  was  a  conscious  adaptation  of 
ancient  philosophy,  and  the  analogy  between  Roman 
and  British  politics  was  very  common  in  the  literature 
of  this  time.  Bolingbroke,  moreover,  like  many  an 

1  Bolingbroke,  Dissertation  on  Parties,  Letter  13.     Hume,  "On  the 
Independency  of  Parliament,"  and  "  Of  the  Liberty  of  the  Press." 

2  Hume,  "  On  the  Independency  of  Parliament." 


380  POLITICAL  THEORIES 

earlier  philosopher  of  the  Christian  era,  found  evidence 
of  divine  sanction  for  the  mixed  form  of  government 
in  the  Mosaic  constitution  of  the  Israelitish  state.1 

But  behind  the  governmental  organs  in  whose 
interaction  was  found  the  guarantee  of  liberty,  all  the 
thinkers  of  this  period  followed  Locke  in  the  concep- 
tion of  a  "people"  in  whom  the  supreme  power  of 
the  state  was  inalienably  vested.  The  people,  or  the 
"community,"  was  conceived  as  the  essence  of  the  state 
and  the  maker  of  the  constitution.2  At  the  basis  of 
the  relation  between  the  people  and  the  government 
was  generally  understood  to  lie  the  entity  which 
figured  in  the  thinking  of  the  time  as  the  "  original 
contract."  The  vogue  of  this  term  was  as  great  as 
its  meaning  was  vague.  Locke  had  set  forth,  as  we 
have  seen,  a  fairly  clear  and  distinct  doctrine  of  the 
social  pact,  but  this  was  not  at  all  adhered  to  in  the 
succeeding  generation.  More  common  was  the  sense 
that  had  been  embodied  in  the  famous  resolution  of 
the  Convention  in  1688,  which  declared  that  King 
James  had  "  endeavoured  to  subvert  the  constitution 
of  the  kingdom  by  breaking  the  original  contract 
between  king  and  people." 3  Bolingbroke  clearly  had 
this  phrase  in  mind  in  most  of  the  numerous  instances 
in  which  he  referred  to  the  contract ;  but  he  was 

1  Dissertation  on  Parties,  Letter  16. 

2  "  By  constitution  we  mean  .  .  .  that  assemblage  of  laws,  institu- 
tions and  customs  derived  from  certain  fixed  principles  of  reason 
directed  to  certain  fixed  objects  of  public  good,  that  compose  the 
general  system  according  to  which  the  community  hath  agreed  to  be 
governed."  —  Bolingbroke,  ibid.,  Letter  10. 

8  Cobbett's  Parliamentary  History,  V,  50. 


THE  ORIGINAL  CONTRACT  381 

unable  to  limit  himself  to  the  narrow  idea  which  it 
expressed.  That  the  great  statutes  securing  the  results 
of  the  Revolution  were  "  original  contracts  "  between 
the  new  monarchs  and  the  people,  and  that  the  con- 
stitution "  is  in  the  strictest  sense  a  bargain,  a  condi- 
tional contract  between  the  prince  and  the  people/ ' 
he  deemed  unquestionable.1  At  the  same  time  he\ 
conceived  that  the  constitution  also  was  a  conditional 
contract  "  between  the  representative  and  collective 
bodies  of  the  nation" — that  is,  between  Parliament 
and  the  people  —  and  that  the  people  had  the  right  and  ; 
the  power  to  resist  an  erring  Parliament  as  well  as  to  ' 
resist  an  erring  king.2  Bolingbroke's  general  purpose  '• 
was  to  avoid  the  recognition  of  an  absolute  and  un- 
controllable power  anywhere  in  political  society  —  to 
make  the  operation  of  government  depend  upon  the 
balance  of  various  powers.  To  this  purpose  the  idea 
of  contract  would  readily  lend  itself ;  but  the  varying 
phases  of  the  party  controversies  which  furnished  the 
text  for  his  essays  prevented  him  from  adhering  to 
any  one  logically  clear  idea  as  to  what  the  nature  of 
the  contract  should  be. 

Hume,  on  the  other  hand,  brought  to  the  discus-  H 
sion  of  the   "  original   contract "    one   of   the   most  \ 
important  contributions  to  be  found  in  the  history  of   ^ 
political   theory.     It   consisted    in   an   incisive   and    \\ 
annihilating  attack  on  the  whole  doctrine  of  contract 
as  the  explanation  and  justification  of  government.3    /  I 

1  Dissertation  on  Parties,  Letters  9-13.  2  Ibid.,  Letters  10,  17. 

8  "  Of  the  Original  Contract,"  in  his  Essays,  Moral,  Political  and 
Literary,  Vol.  I,  p.  443.  Compare  also  "  Of  the  Origin  of  Govern- 
ment," ibid.,  p.  113. 


382  POLITICAL  THEORIES 

~ 

uHe  assailed  the  doctrine  in  both  its  historical  and  its 
philosophical  aspects.  The  earliest  combinations  of 
primitive  men,  he  argued,  mayjpe  said  to  have  been 
formed  by  common  consent,  since  no  individual  ha.fl 
strength  or  force  enough  to  compel  subjects  to  obey 
him ;  but  there  was  in  this  nothing  of  formal  con- 
tract, since  such  an  idea  was  far  above  the  intelli- 
gence  of  the  persons  concerned.  Obedience  was 


determined  in  one  matter  at  a  time  and  gradually 
became  habitual.  In  later  days  and  at  the  present 
day  obedience  is  for  the  most  part  a  matter  of  custom 
and  habit.  The  majority  of  men,  so  far  as  they 
think  about  the  matter  at  all,  are  satisfied  to  follow 
the  conduct  of  their  ancestors  in  submitting  to  a 
certain  family  or  form  of  government.  In  all  the 
changes  of  governmental  organization  which  are  in 
progress  —  in  the  formation  of  empires,  the  destruc- 
tion of  long-existing  states,  the  planting  of  colonies 
and  the  migrations  of  peoples  —  Hume  finds  no  evi- 
dence that  agreements  between  princes  and  peoples 
play  any  part.  The  Kevolution  of  1688,  he  points 
out,  was  effected  in  reality  by  the  majority  of  some 
seven  hundred  persons,  though  it  determined  the 
government  for  ten  millions;  the  latter  acquiesced, 
but  not  from  any  such  rational  consideration  as  is 
involved  in  the  idea  of  contract.  Consent  of  the  gov- 
erned is,  Hume  admits,  one  perfectly  valid  basis  for 
government,  but  it  presupposes  in  a  given  body  of 
men  a  perfect  regard  for  justice  and  a  perfect  under- 
standing of  their  interests  —  presumptions  which  have 
no  foundation  among  actual  men.  So  also  the  doc- 


HUME  ON  CONTRACT  383 

trine  that  the  subject  tacitly  consents  to  the  domin- 
ion of  the  sovereign  whom  he  obeys,  is  a  valid 
explanation  of  the  situation  only  if  the  subject  is  at 
liberty  to  leave  the  country  when  he  chooses ;  but 
most  governments  would  promptly  stop  the  individual 
who  should  try  to  assert  any  such  privilege. 

Having  thus  shown  the  incompatibility  of  the  doc- 
trine of  contract  with  the  facts  of  history  and  present 
observation,  Hume  proceeds  to  demolish  the  purely 
logical  foundations  of  the  theory.  His  ethical  doc- 
trine supplies  the  means  for  his  purpose  here.  He  is 
a  Hobbesian  in  his  view  of  human  nature  — "  every 
man  must  be  supposed  a  knave"  —  and  a  utilitarian 
in  ethics.  A  sense  of  the  advantage  to  the  individual 
of  peace  and  order  in  social  life  is,  in  last  analysis,  he 
holds,  the  reason  for  the  general  submission  to  estab- 
lished authority.  In  this,  as  in  all  other  phases  of 
conduct,  "utility"  is  the  determining  motive.  On\ 
the  basis  of  this  idea  Hume  rejects  the  contract  theory^ 
as  wholly  unnecessary  for  the  rational  justification  of  | 
government^ His  ^argument  could  not  be  put  more/ 
effectively  or  more  concisely  than  in  his  own  words : 

What  necessity,  therefore,  is  there  to  found  the  duty  of 
allegiance  or  obedience  to  magistrates  on  that  of  fidelity  or  a 
regard  to  promises,  and  to  suppose,  that  it  is  the  consent  of 
each  individual,  which  subjects  him  to  government ;  when  it 
appears  that  both  allegiance  and  fidelity  stand  precisely  on  the 
same  foundation,  and  are  both  submitted  to  by  mankind,  on 
account  of  the  apparent  interests  and  necessities  of  human 
society  ?  We  are  bound  to  obey  our  sovereign,  it  is  said ;  be- 
cause we  have  given  a  tacit  promise  to  that  purpose.  But 
why  are  we  bound  to  observe  our  promise  ?  It  must  here  be 


384:  POLITICAL  THEORIES 

asserted,  that  the  commerce  and  intercourse  of  mankind,  which 
are  of  such  mighty  advantage,  can  have  no  security  where  men 
pay  no  regard  to  their  engagements.  In  like  manner,  may  it 
be  said,  that  men  could  not  live  at  all  in  society,  at  least  in  a 
civilized  society,  without  laws  and  magistrates  and  judges,  to 
prevent  the  encroachments  of  the  strong  upon  the  weak,  of  the 
violent  upon  the  just  and  equitable.  The  obligation  to  alle- 
giance being  of  like  force  and  authority  with  the  obligation  to 
fidelity,  we  gain  nothing  by  resolving  the  one  into  the  other. 
The  general  interests  or  necessities  of  society  are  sufficient  to 
establish  both. 

If  the  reason  be  asked  of  that  obedience,  which  we  are 
bound  to  pay  to  government,  I  readily  answer,  because  society 
could  not  otherwise  subsist :  And  this  answer  is  clear  and  intel- 
ligible to  all  mankind.  Y^our  answer  is,  because  we  should  keep 
our  word.  But  besides,  that  no  body,  till  trained  in  a  philo- 
sophical system,  can  either  comprehend  or  relish  this  answer : 
Besides  this,  I  say,  you  find  yourself  embarrassed,  when  it  is 
asked,  why  ive  are  bound  to  keep  our  word  ?  Nor  can  you  give 
any  answer,  but  what  would,  immediately,  without  any  circuit, 
have  accounted  for  our  obligation  to  allegiance.1 

In  these  words  Hume  announced  the  doctrine 
which,  transmitted  through  Bentham  and  the  distin- 
guished line  of  English  utilitarians,  was  in  the  nine- 
teenth century  to  play  a  decisive  part  in  wresting 
from  the  contract  theory  its  century-long  dominion 
over  the  realm  of  political  theory. 

4.   Italian  Theory:   Vico 

The  Italian  representative  of  the  transition  period 
with  which  we  are  dealing,  Gian  Battista  Vico  (1668- 
1744),  has  a  significance  in  the  history  of  political 
theories  only  as  an  exponent  of  the  historical  method 

1  Essays,  Vol.  I,  pp.  455-456. 


A  PHILOSOPHY  OF  HISTORY  385 

in  the  discussion  of  social  and  political  problems. 
The  "  new  science " 1  which  is  the  subject  of  his 
greatest  work  is  substantially  a  philosophy  of  his- 
tory —  a  body  of  principles  through  which  the  course 
of  human  progress  in  general  may  be  interpreted 
and  even  predicted.  The  chief  expression  of  this 
progress  and  of  the  enlightenment  of  mankind  is  to 
be  seen,  according  to  Vico,  in  the  institutions  of  law 
and  government,  and,  therefore,  the  development  of 
these  institutions  is  an  important  element  in  the 
exposition  of  the  science  which  he  is  setting  forth. 
His  theories  as  to  the  order  and  manner  in  which 
governments  arise  and  pass  away  are  novel  and  in- 
teresting ;  but  the  most  striking  features  of  his  work 
are  not  so  much  in  these  as  in  other  fields,  and 
especially  in  the  correlation  of  ingenious  generaliza- 
tions in  metaphysics  and  philology  with  his  new 
interpretation  of  familiar  facts  in  politics  and  juris- 
prudence. A  philosophy  which  has  its  initial  doctrine 
in  the  proposition  that  the  phenomena  of  humanity 
are  in  last  analysis  reducible  to  the  three  categories, 
knowledge,  will  and  power  (nosse,  velle,  posse) ;  which 
devotes  much  attention  and  attaches  great  signifi- 
cance to  the  theory  that  Homer  and  his  poems  denote 
not  an  individual  and  his  work,  but  an  age  and  its 
views  of  life;  and  which  concludes  with  a  forecast 
of  the  political  development  of  Europe:  —  such  a 
philosophy  is  clearly  a  profound  and  comprehensive 
system. 

1  Principi  di  una  Scienza  Nuova,  published  first  in  1725,  and  in  a 
much  modified  second  edition  in  1730. 

VOL.  II. 2  C 


386  POLITICAL   THEORIES 

Nor  is  it  true  of  Vico's  work,  as  it  is  of  many 
another  whose  scope  has  been  equally  ambitious, 
that  the  modern  reader  finds  himself  repelled  by  the 
frequent  occurrence  of  hopelessly  absurd  ideas.  Vico, 
though  in  some  few  points  archaic,  meets  the  test 
of  later  standards  well;  he  is  indeed  a  philosopher 
of  the  nineteenth-century  rather  than  the  eighteenth- 
century  type,  and  it  was  to  this  that  was  due  the 
general  lack  of  recognition  until  the  later  epoch.1 

The  Italian's  contribution  to  political  theory  is  to 
be  found  chiefly  in  his  doctrines  as  to  the  forms  and 
sequence  of  human  governments.2  The  forms  are\ 
(1)  theocracy,  (2)  aristocracy  and  (3)  the  free  state, 
the  last-named  including  both  republics  and  mon- 
archies, and  the  sequence  that  is  revealed  by  his 
interpretation  of  history  follows  the  order  in  which 
these  are  here  mentioned.  By  theocracy,  he  desig- 
nates the  government  in  which  the  direct  authority 
of  God,  expressed  through  oracles,  is  the  source  of 
all  political  power.  By  aristocracy,  he  means  the 
organization  which  is  effected  by  the  independent 
heads  of  families  in  primitive  times,  and  which, 
even  when  its  government  is  directed  by  a  king, 
rests  on  the  supreme  authority  of  these  associated 
heads.  The  free  republic  is  the  governmental  form 
in  which  political  power  is  the  possession  of  not  only 
the  ancient  aristocracy,  but  also  the  whole  mass  of 

1  Flint's  Vico  gives  in  compact  form  a  good  account  of  the  philos- 
opher's life  and  works. 

2  The  analysis  of  the  various  forms  is  most  fully  treated  in  his 
work  De  uno  universi  luris  Principio  et  Fine  uno ;  the  sequence  is  to 
be  found  there,  sec.  155  et  seq.,  and  also  in  the  Scienza  Nuova,  Lib.  IV. 


SEQUENCE  OF  GOVERNMENTS          387 

population,  which  has  become  an  integral  part  of  the 
community.  Monarchy  is  the  type  in  which  the  gov- 
ernmental authority  has  been  taken  over  to  be  exer- 
cised on  behalf  of  the  people  by  an  individual.  These 
are  the  forms  which  to  Vico  are  clearly  discernible 
in  history,  and  which  alone  have  an  unshakable 
foundation  in  true  philosophy.  The  mixed  forms 
which  appear  from  time  to  time  are  merely  phases 
of  the  transition  from  one  of  the  type  forms  to  the 
next  in  sequence.  Thus  the  power  of  the  senate 
and  the  optimates,  which  made  the  Roman  Republic 
"  mixed,"  was  a  survival  of  the  old  days  when  the 
nobility  were  the  only  element  in  the  government; 
and  the  nominally  representative  character  of  the 
monarch,  in  the  time,  for  example,  of  the  Roman 
Principate,  shows  the  influence  of  the  popular  regime 
which  was  passing  away.1 

This  classification  and  sequence  of  governmental 
forms  Yico  derives  primarily,  like  the  most  of  his 
ideas,  from  Roman  history ;  but  he  finds  his  theory 
supported  by  the  facts  in  the  history  of  other  peoples 
so  far  as  we  know  them,  and  he  believes  that  since 
the  chaos  of  the  Teutonic  invasions  the  theocracy 
and  aristocracy  of  the  first  two  stages  have  succes- 
sively characterized  Europe,  and  that  the  free  com- 
monwealth and  monarchy  are  sure  to  develop  in  their 
turn.2  But  it  is  not  merely  on  the  observation  of 
history  that  he  depends  for  his  doctrine.  His  analy- 
sis of  the  institutions  characteristic  of  each  of  the 
phases  of  political  development  enables  him  to  show 

1  Scienza  Nuova,  Lib.  IV.  2  Ibid.,  Lib.  V. 


388  POLITICAL  THEORIES 

that  these  phases  have  an  intimate  relation  to  the 
ultimate  principles  of  general  philosophy.  He  sees 
all  phenomena  in  triads,  corresponding  to  the  three 
species  of  states.  He  finds  three  kinds  of  nature, 
three  kinds  of  social  character  (maurs),  three  kinds 
of  language  and  alphabet,  three  kinds  of  jurispru- 
dence, of  authority,  of  reason  and  of  judicial  pro- 
cedure, and  one  element  in  each  of  these  triads  finds 
its  expression  in  each  of  the  forms  of  state.  History 
in  its  largest  aspect  shows  that  mankind  develops  in 
a  recurring  cycle  of  three  stages  —  the  divine,  the 
heroic  and  the  human,  and  political  organization  cor- 
responds to  these.  The  sequence  of  governments, 
then,  is  not  a  movement  to  be  deprecated  and  to  be 
combated  by  political  science,  but  is  an  inevitable 
consequence  of  the  divine  plan  embodied  in  the 
creation. 

Though  Vico's  triopsis  is  at  some  points  rather 
forced  and  unreal,  yet  he  presents  on  the  whole  a 
very  remarkable  interpretation  of  institutions  social 
and  political,  in  connection  with  the  various  phases 
of  human  government.  His  method  of  thought 
furnishes  a  striking  contrast  to  that  of  the  natural- 
law  philosophers,  who  dominate  the  thinking  of  the 
time.  With  them  the  ideal  is  a  body  of  law,  rights 
and  authority  which,  corresponding  to  a  perfect  and 
unchanging  human  reason,  must  be  good  for  all 
times  and  places ;  with  Vico  there  is  no  perfect 
and  unchanging  reason  save  that  of  God,  and  in 
all  human  affairs  law,  rights  and  authority  must 
inevitably  vary  according  to  the  stages  of  general 


VICO   AND  MONTESQUIEU  389 

enlightenment.  Much  as  he  admires  Grotius,  Vico 
cannot  but  jeer  at  the  amiable  attempt  of  the  Dutch 
philosopher  and  his  followers  to  ascribe  validity  for 
all  ages  to  the  rational  interpretation  of  the  law  of 
nature  which  belongs,  in  reality,  only  to  their  own 
age.1 

In  his  persistent  emphasis  on  the  transitions  of 
human  affairs,  and  in  his  explanation  of  political 
institutions  in  terms  of  their  environment,  Vico 
often  strongly  suggests  the  method  of  Machiavelli 
and  of  Bodin,  to  both  of  whom  he  makes  frequent 
reference;  but  more  than  either  of  these,  Montesquieu 
is  suggested,  as  we  shall  see,  by  Vico.  The  Italian's 
elaborate  discussions2  of  the  forms  of  government 
in  reference  to  the  national  character,  and  of  the 
conceptions  of  justice,  law,  custom  and  jurispru- 
dence in  the  variations  due  to  the  nature  of  the 
different  forms  of  government,  are  strongly  sugges- 
tive not  only  of  the  general  scope  but  even  of 
certain  specific  chapters  of  Montesquieu's  greatest 
work.  It  need  not  be  held  that  the  French  phi- 
losopher took  consciously  from  the  Italian  without 
credit,  but  there  is  certainly  cause  for  the  reflection 
that  the  complacent  legend  with  which  Montesquieu 
characterized  his  work — prolem  sine  matre  natam  — 
might  more  accurately  have  taken  the  form  prolem 
permultis  matribus  natam  ;  and  in  the  list  of  the  many 
mothers  the  systems  of  Locke  and  Vico  would  occupy 
a  distinctive  place. 

1  Vico,  Opere,  Vol.  V,  p.  488. 

2  Especially  in  the  De  uno  universi  Turis  Principio. 


390  POLITICAL  THEORIES 


SELECT  REFERENCES 

BLUNTSCHLI,  Geschiclite,  pp.  248-298.  BOLINGBROKE,  Works, 
Vols.  Ill  (Dissertation  upon  Parties)  and  IV  (A  Patriot 
King).  FLINT,  Vico.  FRANCK,  Reformateurs  et  Publicities, 
XVIII™  sttde,  pp.  67-136  (Vico).  FREDERICK  THE  GREAT, 
Posthumous  Works,  Preface  and  Vol.  V,  pp.  5-33  (Forms  of 
Government) ;  Anti-Machiavel  (1741).  HARROP,  Bolingbroke, 
pp.  291-307.  HUME,  Essays.  JANET,  Histoire,  II,  549-551 
(Hume),  509-512  (Frederick  the  Great),  513-520  (Vico). 
LECKY,  England  in  the  Eighteenth  Century,  I,  63-119 ;  160- 
210;  271-278.  STEPHEN,  SIR  LESLIE,  English  Thought  in 
the  Eighteenth  Century,  II,  167-185.  Vico,  Opere,  Vols.  Ill 
and  V. 


,'"• 


CHAPTER  XII 

MONTESQUIEU 

1.    General  Conditions  of  his  Work 

THE  profound  impression  made  by  Montesquieu  on 
French  critics,  not  only  contemporary  with  him  but 
also  of  all  generations  to  the  present  day,  may  be 
traced  in  part  to  other  causes  than  the  merely  philo- 
sophical character  of  his  work.  As  much  probably  is 
due  to  the  form  and  time  of  appearance  as  to  the 
substance  of  his  speculations.  He  was  a  true  French 
litterateur,  and  in  making  his  way  to  public  notice  he 
conformed  very  exactly  to  the  requirements  of  the 
time  for  the  acquisition  of  that  character.  Though 
by  birth  a  provincial,  and  by  temperament  not  at  all 
frivolous,  he  regularly  won  the  approval  and  applause 
of  the  fashionable  Parisian  literary  world,  the  salons, 
before  taking  up  his  serious  work.  His  Lettres  Per- 
sanes,  published  in  1721,  satirized  existing  institu- 
tions, political,  religious  and  social,  with  just  the 
mixture  of  wisdom,  wit  and  lubricity  that  appealed 
to  the  taste  of  the  day,  and  h'e  became  at  once  a 
member  in  good  standing  -of  the  literary  set,  with 
admission  soon  to  the  Academy.  With  the  official 
stamp  of  homme  d" esprit  thus  clearly  set  upon  him, 
he  devoted  himself  to  preparation  for  the  work  which 
was  to  break  the  long  silence  of  the  French  spirit 
on  rational  politics.  For,  with  the  exception  of 

391 


392  POLITICAL  THEORIES 

Bossuet,  whose  eminence  in  this  particular  field 
may  possibly  be  questioned,  no  Frenchman  had  put 
forth  an  important  and  comprehensive  work  of  politi- 

J<fa  4 

cal  philosophy  since  the  Bourbons  ascended  the  throne 
at  the  end  of  the  sixteenth  century. 

The  period  covered  by  Montesquieu's  mature  life 
was  a  period  in  which  many  facts  pointed  to  the 
revival  of  political  speculation.  The  last  years  of 
the  life  of  Louis  XIV  had  tightened  the  bonds  which 
repressed  the  French  spirit,  and  after  the  death  of 
the  great  monarch,  in  the  days  of  the  regency  and 
of  Louis  XV,  manifestations  appeared  in  great  num- 
bers of  a  reaction  against  the  regime  of  oppression 
which  had  prevailed.  The  spirit  of  scepticism,  and 
with  it  the  spirit  of  a  rational  liberty,  appeared  in 
many  ways.  Immediately  after  the  death  of  Louis 
XIV  the  ideas  of  Fenelon  as  to  a  less  repressive  gov- 
ernmental system  were  seriously  discussed,  and  the 
application  of  the  ideas  in  practice  seemed  at  one 
time  quite  probable.  Later  the  Abbe  de  St.  Pierre 
put  forth  with  considerable  freedom  his  criticisms  of 
the  existing  conditions  in  French  government,  and 
his  suggestions  and  criticisms  made  doubtless  some 
impression,  though  in  general  he  was  regarded  as  a 
hopeless  visionary  and  a  sort  of  privileged  nuisance. 
The  Marquis  d'Argenson  formulated  a  comprehen- 
sive scheme  of  constitutional  reform  directed  in 
general  toward  converting  the  existing  monarchic 
despotism  into  what  would  be  at  least  an  enlight- 
ened despotism.1  At  the  same  time  Voltaire  was 

1  For  St.  Pierre  and  Argenson,  see  Janet,  Histoire,  II,  30 


MONTESQUIEU  393 


beginning  that  career  of  sharp,  cynical  and  very 
effective  criticism  of  the  censorship  from  which 
particularly  the  more  independent  thinkers  of  the 
day  were  suffering. 

With  the  tendencies  of  thought  thus  in  the  air, 
Montesquieu  was  in  entire  sympathy,  and  for  the 
development  of  his  ideas  in  the  field  he  set  to  work 
to  prepare  himself  by  study  and  by  travel.  The 
hereditary  magistracy  which  he  held  he  sold  in  1726, 
and  thenceforth  he  devoted  himself  to  preparation  for 
his  philosophical  work.  His  studies  included  particu- 
larly the  history  and  the  state  system  of  the  Romans, 
and  his  travels  covered  the  leading  political  divisions 
of  Europe,  his  longest  stay  being  made  in  England. 
Whatever  his  observations  on  the  Continent  may 
have  contributed,  his  English  connections  were  un- 
questionably the  most  influential  in  determining  his 
thought.  In  England  he  came  in  contact  with  the 
spirit  of  Bolingbroke  and  the  other  politicians  of 
the  higher  type,  and  he  absorbed  in  full  the  con- 
ception of  English  liberty  and  of  its  constitutional 
guarantees  that  prevailed  among  them. 

With  the  preparation,  then,  which  his  travels  and 
his  very  wide  researches  into  the  institutions  and 
customs  of  all  the  peoples  of  the  world  had  given 
him,  he  gradually  worked  out  his  Spirit  of  the  Laws. 
The  work  was  not  published  until  1748.  Midway  be- 
tween it  and  his  earliest  publication  stands  his  famous 
essay  on  the  Greatness  and  Decline  of  the  Romans? 

1  Considerations  sur  les  causes  de  la  grandeur  des  Romains  et  de  leur 
decadence. 


394  POLITICAL  THEORIES 

which  appeared  in  1734.  In  this  was  revealed 
clearly  enough  the  character  and  method  of  his 
philosophy.  The  essay  was  a  philosophical  analy- 
sis of  the  history  of  Rome,  sketched  in  very  broad 
lines.  It  does  not  embody,  like  the  work  of  Vico, 
any  original  contributions  to  the  criticism  of  the 
sources  of  Roman  history.  Like  Machiavelli,  and 
indeed  like  all  the  writers  of  the  Renaissance  period, 
Montesquieu  assumed  the  accuracy  and  sufficiency  of 
the  accounts  left  by  the  Roman  historians  and  made 
these  accounts  the  basis  of  his  generalizations  as  to 
the  course  of  Roman  affairs. 

On  the  whole  it  may  be  assumed  that  Roman  his- 
tory and  contemporary  English  institutions  were  the 
chief  elements  in  determining  the  purpose  as  well  as 
the  general  system  of  Montesquieu's  political  philos- 
ophy. It  is  from  these  two  sources  that  he  derived 
that  conception  of  liberty  which  is  in  the  main  the 
central  practical  theme  of  his  philosophy. 

2.   Method  and  First  Principles 

The  field  covered  by  The  Spirit  of  the  Laivs  is  so 
extensive  as  to  make  it  a  work  rather  of  social  science 
than  of  politics  proper.  The  lines  of  Montesquieu's 
survey  are  those  of  the  Greek  philosophers,  com- 
prehending all  the  institutions  of  social  existence. 
While  his  general  spirit  is  strongly  suggestive  of 
Aristotle's  Politics,  his  point  of  view  is  often  evi- 
dently that  of  Plato's  Laws.  He  puts  himself  in  the 
position  of  the  legislator,  in  the  sense  so  common  in 
antiquity  —  the  man  of  almost  superhuman  sagacity, 


MONTESQUIEU'S  METHOD  395 

e  Solon  and  Lycurgus,  intrusted  with  the  formu- 
lation of  a  code  to  regulate  a  given  society.  The 
problems  that  would  confront  such  a  legislator  are 
the  problems  which  particularly  interested  Montes- 
quieu. For  their  solution,  however,  his  method  is 
that  of  Aristotle,  not  of  Plato,  of  Bodin,  not  of 
Hobbes  or  Locke.  Like  all  the  thinkers  of  his  time 
he  would  look  to  nature  for  the  criterion  of  his  law. 
But  the  teachings  of  nature  would  be  sought  not  in 
deductions  from  abstract  assumptions  of  pure  reason, 
but  in  the  concrete  facts  of  life  both  present  and  past. 
His  explanation  of  social  phenomena,  and  of  the 
laws  which  govern  them,  is  derived  chiefly  from  his- 
tory and  observation,  and  the  explanation  so  derived 
is  in  his  philosophy  the  chief  element  in  framing  a 
judgment  as  to  the  moral  or  political  value  of  any 
legislation. 

Montesquieu's  particular  line  of  approach  to  politi- 
cal and  social  problems  is  apparent  in  his  opening  book, 
"Of  Laws  in  General."1  The  laws,  in  the  widest 
sense  of  the  word,  are,  he  says,  "  the  necessary  rela- 
tions springing  out  of  the  nature  of  things."  2  This 
opening  sentence  of  his  work  drew  upon  Montesquieu 

1  The  system  of  subdivisions  in  The  Spirit  of  the  Laws  is  somewhat 
unusual.     The  work  consists  of  thirty-one  "  books,"  each  book  being 
divided    into   "chapters."      Montesquieu's   "book"    corresponds    in 
coherence  and  length  to  what  is  ordinarily  called  a  chapter;   and 
his  "chapters"  are  short,  often  consisting  of  a  single  paragraph  and 
sometimes  of  a  single  sentence.    Each  "  chapter  "  has  a  special  caption, 
and  this  fact  has  its  useful  side;  although  when  the  caption  is  merely 
"  Reflection  "  (XIX,  xi)  or  "  Fine  Law  "   (XX,  xvi)  or  "  Problem  " 
(XXI,  xxiii),  the  reader  does  not  derive  much  benefit  from  it. 

2  "  Les  lois  dans  la  signification  la  plus  etendue  sont  les  rapports 
necessaires  qui  derivent  de  la  nature  des  choses." 


396  POLITICAL  THEORIES 

a  good  deal  of  criticism  and  some  ridicule,  especially 
from  readers  of  a  juristic  bent.  In  the  range  of  phi- 
losophy from  Plato  to  Locke  law  had  received  many 
varieties  of  definition ;  whole  systems  of  thought  had 
turned  on  the  controversy  between  those  who  re- 
garded it  as  essentially  a  dictate  of  reason,  and  those 
who  conceived  it  as  the  command  of  a  superior; 
but  no  one  had  ventured  to  define  law  as  merely  a 
series  of  "  relations."  Whether  or  not  Montesquieu's 
expression  is  the  most  perfect  possible,  the  idea  which 
he  aims  to  convey  by  it  is  most  important.  His 
phrase,  as  his  exposition  shows,  is  designed  to  exclude 
from  the  conception  of  law  the  element  of  arbitrari- 
ness or  caprice.  That  anything  exists,  implies  a 
relationship  of  cause  and  effect,  and  in  this  relation- 
ship inheres  the  law  of  its  existence.  Independently 
of  the  laws  which  men  make,  therefore,  a  body  of 
principles  is  unceasingly  operative  which  determines 
their  institutions  and  determines  their  legislation 
itself.  A  definition  of  law  that  would  exclude  these 
ultimate  forces  would  be  inadequate.  Hence  Mon- 
tesquieu presents  the  formula  which  he  thinks  has 
sufficient  generality  to  cover  all  the  species. 

This  definition  of  law  applies,  of  course,  to  all 
created  things,  animate  or  inanimate.  Taking  up 
man,  the  only  created  thing  of  whom  intelligence  can 
be  predicated,  Montesquieu  finds  the  first  body  of  laws 
relative  to  his  existence  to  be  the  laws  of  nature. 
These  he  conceives  to  be  the  principles  which  have 
their  immediate  cause  in  the  essential  character  of 
man  as  man.  But  Montesquieu  does  not  ascribe  to 


NATURAL  AND  POSITIVE  LAW  397 

the  natural  man  either  the  exalted  intelligence  or  the 
domineering  spirit  which  figured  in  the  systems  of 
Locke  and  Hobbes  respectively ;  nor  to  the  law  of 
nature  that  elaborate  content  which  previous  writers 
had  worked  out.  Pre-social  man  is,  according  to 
Montesquieu,  a  timid,  trembling  creature,  occupied 
chiefly  in  panic-stricken  flight  from  the  dangers,  real 
or  imaginary,  which  surround  him ;  and  the  laws  of 
nature  are  merely  those  first  unreasoning  impulses  in 
accordance  with  which  the  natural  man  avoids  aggres- 
sive acts  that  imperil  his  safety,  seeks  food  to  sustain 
his  life,  propagates  his  kind,  and  ultimately  grows  into 
social  intercourse  with  other  men.1  But  with  the 
formation  of  societies  and  the  increase  of  knowledge 
that  accompanies  it  the  whole  situation  changes. 
Men  lose  their  sense  of  weakness,  seek  for  power  over 
one  another,  and  thus  inaugurate  a  state  of  war. 

In  the  conditions  of  this  new  situation  are  found 
the  sources  of  positive  laws.  These  laws  fall  into 
three  classes,  corresponding  to  three  sets  of  relations. 
In  the  relations  of  different  peoples  to  one  another, 
arising  particularly  from  the  state  of  war  which  nor- 
mally prevails  among  them,  is  the  source  of  the  law 
of  nations.  In  the  relations  between  governing  and 
governed  parts  of  any  particular  society  is  the  source 


1  Montesquieu  includes  the  idea  of  reverence  for  a  Creator  among 
the  laws  of  nature,  ranking  it  as  first  in  importance  but  not  in  order 
of  these  laws.  The  inclusion  of  this  idea,  however,  is  wholly  illogical 
1  and  is  irreconcilable  with  his  primary  conception  of  either  the  pre- 
social  man  or  the  laws  of  nature.  In  this  same  chapter  he  declares 
that  speculation  on  the  origin  of  man  cannot  be  conceived  to  appear  in 
the  state  of  nature.  Cf.  Book  I,  chap.  ii. 


398  POLITICAL  THEORIES 

of  political  law  (le  droit  politique).  In  the  relations 
which  the  individual  citizens  have  with  one  another 
is  the  source  of  civil  law. 

The  law  of  nations  is  common  to  all  societies,  and 
it  is  based  on  the  principle  that  each  nation  must  in 
peace  do  the  most  good  and  in  war  the  least  evil  that 
is  compatible  with  its  particular  interests.  Political 
and  civil  laws  vary  from  nation  to  nation,  and  result 
from  the  application  of  human  reason  to  the  particu- 
lar circumstances  of  a  given  society.1  Thus  the  most 
"  natural "  form  of  government  is,  Montesquieu  says, 
/  that  form  whose  character  has  the  best  relation  to 
the  character  of  the  people  for  whom  it  is  established. 
So  with  civil  laws :  they  must  have  a  relation  to  the 
physical  character  of  the  country  and  to  the  climate, 
to  the  prevailing  occupations  of  the  people,  to  the 
amount  of  liberty  permitted  by  the  constitution,  to 
the  size  and  characteristics  of  the  population,  and  to 
its  religion,  wealth,  commerce,  morals  and  manners. 
Further,  the  laws  must  have  certain  relations  with 
one  another,  —  with  the  circumstances  of  their  own 
origin,  with  the  purpose  of  the  lawmaker,  and  with 
the  subject-matter  to  which  they  apply.  All  these 
various  relations  in  their  totality  constitute  what 
Montesquieu  designates  the  "  spirit  of  the  laws/'  and 
the  consideration  of  them  all  in  this  sense  is  the 
purpose  of  his  work.2 

1  Montesquieu  seems  to  distinguish  between  laws  in  general  and 
law  in  general.     Laws  (les  lois)  in  his  sense  have  been  defined  above ; 
law  (la  loi)  in  general  he  defines  as  "human  reason  so  far  as  it 
governs  all  the  peoples  of  the  earth."  —  I,  iii. 

2  Bk.  I,  chap.  iii. 


MONTESQUIEU  399 

X 

3.   Forms  of  Government  according  to  Nature 
and  Principle 

The  plan  thus  proposed  by  Montesquieu  involves 
in  its  execution  a  consideration  of  the  leading  facts 
and  characteristic  principles  of  public  law,  jurispru- 
dence, economics  and  sociology,  as  well  as  of  politics 
proper,  and  all  of  these  fields  are  covered  by  the  com- 
plete work.  The  great  mass  of  heterogeneous  matter 
is  pervaded  by  a  certain  system,  and  the  key  to  this 
system  is  to  be  found  in  the  philosopher's  classifica- 
tion of  governments  and  in  his  doctrines  as  to  the 
principles  which  characterize  the  different  forms. 
Politics  proper  thus  gives  coherence  to  the  whole 
work,  however  widely  the  detail  may  diverge  from 
this  field  and  however  strongly  the  author  may  be 
imbued  with  the  spirit  of  the  law-giver  and  jurist 
as  distinct  from  that  of  politician. 

Montesquieu  assumes  a  threefold  classification  of 
governments,  —  republican,  monarchic  and  despotic, 
—  which  becomes  immediately  fourfold  by  the  divi- 
sion of  republican  governments  into  democracies  and 
aristocracies.  The  basis  of  this  classification  he  finds 
first  in  the  "  nature  "  of  the  systems ;  that  is,  in  the 
structure  of  the  governments.  The  republican  system 
is  that  in  which  sovereign  power  is  possessed  by  either 
the  whole  people  or  some  part  of  it ;  monarchy  con- 
sists in  the  rule  of  an  individual  according  to  fixed 
laws ;  despotism  is  the  rule  of  an  individual  without 
law  and  without  restraint. 

There   is  in  this  aspect  of  the  classification,  as 


400  POLITICAL  THEORIES 

Montesquieu  puts  it,  little  logic  and  no  novelty. 
He  employs  no  single  basis  of  division,  but  distin- 
guishes the  different  species  partly  according  to  the 
number  of  individuals  holding  the  supreme  power 
and  partly  according  to  the  manner  in  which  the 
power  is  exercised ;  and  both  the  names  and  char- 
acteristics which  he  gives  to  the  different  classes 
are  as  old  as  political  speculation. 

Much  more  significant,  however,  than  the  differ- 
ences of  "  nature  "  among  the  species  of  government 
are  the  differences  of  "  principle."  Montesquieu  dis- 
criminates with  particular  care  between  the  nature 
and  the  principle  of  a  government ;  by  the  one  term 
he  designates  the  peculiar  structure ;  by  the  other, 
"  the  human  passions  which  make  it  act." l  Each 
of  the  four  kinds  of  government,  therefore,  has  its 
peculiar  principle.  In  a  republican  government  this 
is  "  virtue " ;  not  moral  or  Christian  virtue,  but 
political  virtue  in  the  strict  sense,  namely,  "love 
of  country  and  of  equality." 2  In  democracy  this 
virtue  rules  in  its  most  unqualified  form;  in  aris- 
tocracy, which  is  also,  according  to  Montesquieu,  a 
republican  government,  the  principle  of  virtue  takes 
on  a  particular  aspect  which  he  designates  as 
"moderation."  His  thought  is  that  the  members 

1  Bk.  Ill,  chap.  i. 

2  Montesquieu  was  subjected  to  much  criticism  for  his  ascription 
of  "  virtue  "  exclusively  to  republican  governments,  and  he  explained 
his  meaning  in  an  avertissement  prefixed  to  the  later  edition  of  his 
work.     Here  he  defined  "  virtue  "  as  above,  and  pointed  out  that  he 
had  not  represented  such  virtue  as  possessed  exclusively  by  republican 
governments,  but  merely  as  relatively  more  influential  in  them  than 
in  other  governmental  forms. 


THE  PRINCIPLE  OF  MONARCHY 

of  the  ruling  class  in  the  aristocracy  are  restrained 
in  their  government  by  consideration  both  for  the 
lesser  people  and  for  one  another.  Moderation  thus 
is  the  soul  of  such  a  government ;  but  it  must  be 
moderation  based  on  virtue,  not  that  which  is  due 
to  lack  of  energy  or  spirit.1 

In  monarchy  the  principle  is  "honour."  Distinc- 
tions of  rank  and  dignity  are  essential  features  of 
this  kind  of  government,  according  to  Montesquieu, 
and  by  "  honour  "  he  means  a  high  sense  of  the  rights 
and  privileges  pertaining  to  each  preeminent  class  or 
individual.  For  the  sake  of  these  privileges  and  dig- 
nities men  will,  he  believes,  manifest  much  the  same 
spirit  and  ability  that  are  manifested  in  republican 
governments  under  the  inspiration  of  a  sense  of 
equality;  the  latter  is  excluded  from  monarchy  by 
the  nature  of  things,  and  therefore  honour  as  a  spring 
of  action  takes  its  place.  In  honour,  moreover,  under- 
stood as  the  feeling  of  class  privilege,  lies  the  practi- 
cal guarantee  that  monarchy  shall  not  be  transmuted 
into  despotism.  The  principle  of  this  latter  form  of 
government  is  "fear."  Everything  turns  on  the 
power  and  readiness  of  the  prince  to  strike  down 
whom  he  will  at  any  moment.  Neither  virtue  nor 
honour  has  any  place  in  a  system  where  there  is  no 
law  but  the  caprice  of  a  single  man. 

By  reference  to  these  various  kinds  of  nature  and 
principle,  Montesquieu  classifies  and  explains  a  mul- 
titude of  the  most  important  social  and  political 

1  J'entends  celle  qui  est  fondee  sur  la  vertu ;  non  pas  celle  qui 
vient  d'une  lachete  et  d'une  paresse  de  Tame.  —  III,  iv. 

VOL.    II.  —  2D 


402  POLITICAL  THEORIES 

institutions  and  laws  known  to  history  and  observa- 
tion. He  shows  that  a  definite  relation  to  the  nature 
of  a  government  determines  the  character  of  those 
fundamental  laws  which  make  the  constitution. 
For  republican  governments  these  must  regulate 
the  suffrage  and  elections,  define  the  form  and 
action  of  the  assemblies  and  other  organs  of  govern- 
ment, and  fix  the  number  and  powers  of  the  magis- 
trates. Montesquieu's  ideas  on  the  details  of  these 
laws  follow  very  closely  the  ideas  of  Aristotle,  and 
his  illustrations  are  derived  chiefly  from  Greece  and 
Rome.1  Thus  we  find  the  doctrines  that  choice  of 
officers  by  lot  is  appropriate  to  democracy,  choice  by 
election  to  aristocracy ;  that  legislative  power  should 
be  in  the  body  of  the  people  in  a  democracy,  but  in  a 
select  council  or  senate  in  an  aristocracy;  that  the 
people  as  a  whole  are  excellent  at  selecting  magis- 
trates to  carry  out  their  will,  but  incapable  of  carry- 
ing it  out  well  by  themselves.  On  the  question  as  to 
whether  voting  should  be  secret  or  open,  a  question 
that  he  regards  as  most  important,  Montesquieu's 
judgment  is  that  for  democracy  open  voting  is 
essential,  in  order  that  the  lesser  people  may  be 
enlightened  and  restrained  by  the  greater;2  for 
aristocracies,  or  for  an  aristocratic  senate  in  a 
democracy,  secret  voting  is  indispensable  in  order 
to  prevent  intrigue  and  faction  (brigue).9 

1  Bk.  II,  chaps,  ii  and  iii. 

2  II  faut  que  le  petit  peuple  soit  eclaire  par  les  principaux  et 
contenu  par  la  gravite  de  certains  personnages.  —  II,  ii. 

8  Montesquieu  thinks  that  faction  is  on  the  -whole  good  in  a 
democracy.  It  at  least  keeps  the  people  interested  in  public  affairs 
and  acts  thus  as  an  obstacle  to  decay. 


MONARCHY  AND  DESPOTISM  403 

For  monarchy  the  most  important  laws  relative  to 
its  nature  are  those  which  insure  the  preeminence  of 
the  privileged  classes,  especially  the  nobility.  The 
maxim  of  monarchy  is :  "  No  monarchy,  no  nobility ; 
no  nobility,  no  monarchy/' l  Next  in  importance  to 
the  guarantee  of  the  privileged  classes  is  some  organ 
for  the  preservation  of  the  laws  (un  depot  des  lois). 
The  function  of  guarding  the  laws  cannot  properly  be 
intrusted,  Montesquieu  believes,  to  either  the  nobility 
or  the  royal  council ;  it  must  be  assigned  to  an  inde- 
pendent body  or  series  of  bodies.  What  he  has  really 
and  almost  exclusively  in  mind  here  is  the  condition 
of  the  French  monarchy,  and  the  depositary  of  the 
laws  which  he  is  thinking  of  is  the  judicial  bodies, 
namely,,  the  ancient  parlements. 

As  to  despotic  government,  the  only  institution 
peculiarly  appropriate  to  its  nature  is  the  vizirate. 
Montesquieu's  conception  of  despotism  is  strictly 
that  of  the  Oriental  type,  —  the  dominion  of  an 
idle  and  effeminate  voluptuary,  who  devolves  all  the 
responsibility  for  government  upon  a  favourite  and 
supplants  him  by  another  at  the  suggestion  of  any 
caprice  or  whim.  A  council  or  cabinet  to  advise  the 
despot  is  incompatible  with  the  nature  of  the  gov- 
ernment, in  Montesquieu's  opinion,  since  that  would 
require  the  exercise  of  choice  among  the  various 
opinions  or  suggestions  offered,  and  this  would 
involve  more  personal  effort  than  the  r&le  of  despot 
permits.  Hence  the  single,  all-controlling  vizier  is 
characteristic  of  this  species  of  government.2 

1  Bk.  II,  chap.  iv.  2  Ibid.,  chap.  v. 


404  POLITICAL  THEORIES 

The  relation  of  laws  and  institutions  to  the  princi- 
ples of  the  various  species  of  government  opens  to 
Montesquieu  a  field  for  a  rich  variety  of  comment 
and  suggestion  in  his  characteristic  style.1  Educa- 
tion and  legislation,  he  holds,  must  correspond  in 
character  to  the  principle  of  the  particular  govern- 
ment. In  the  development  of  this  idea  in  reference 
to  republics  and  despotisms  he  rises  little  above  the 
commonplaces  of  Greek  and  Koinan  literature  ;  as  to 
monarchy,  on  the  other  hand,  his  treatment  of  insti- 
tutions in  their  relation  to  the  principle  of  "honour" 
has  a  marked  quality  of  freshness  and  ingenuity. 
His  great  preoccupation  is  to  assure  to  the  nobility 
an  indispensable  position  in  both  the  social  and  the 
political  structure.  In  a  democracy  the  laws  must 
aim  to  promote  the  love  of  equality  and  the  practice 
of  frugality;  and  here  Montesquieu  approves  the 
ancient  theory  that  an  equal  distribution  of  wealth 
may  properly  be  a  conscious  purpose  of  the  law.  In 
aristocracies  legislation  should  be  so  framed  as  to 
prevent  extreme  assertions  of  dignity  and  privilege 
by  the  ruling  class  and  to  render  impossible  the 
exploitation  of  the  subject  class  through  taxation. 
Moderation  of  wealth  and  of  power  should  always 
be  aimed  at.  On  the  one  hand,  the  nobility  should 
be  excluded  from  commercial  pursuits,  since  the 
qualities  developed  therein  —  equality,  frugality  and 
industry  —  are  more  appropriate  to  democracies;  on 
the  other  hand,  the  laws  should  avoid  all  provisions 
designed  to  magnify  and  perpetuate  the  greatness  of 

1  Bks.  IV  to  VIII  are  concerned  with  this  general  subject. 


MONTESQUIEU  405 

the  ruling  families,  since  such  provisions  are  the 
special  characteristic  of  monarchy.  In  monarchy 
the  protection  and  exaltation  of  the  privileges  of 
the  nobility  should  be  a  prime  object  of  the  laws. 
Hence  in  monarchy  all  the  devices  by  which  the 
dignity  of  the  privileged  classes  is  enhanced,  and  the 
principle  of  honour  thus  kept  active,  must  be  resorted 
to  in  legislation.  Entail  and  primogeniture  must 
render  certain  the  maintenance  of  family  estates,  and 
insure  the  perpetuity  of  the  noble  class,  and  the  dig- 
nities and  rights  attaching  to  fiefs  must  be  carefully 
preserved.  The  inconveniences  resulting  from  such  a 
system  are  great,  but  the  system  is  indispensable  to 
the  maintenance  of  that  sense  of  honour  which  alone 
makes  monarchy  possible  without  despotism. 

Further  applications  of  his  classifications  of  gov- 
ernments according  to  nature  and  principle  are 
responsible  for  Montesquieu's  conclusions  on  other 
important  aspects  of  policy.  Thus  he  demonstrates 
that  service  in  public  employment  should  be  com- 
pulsory in  republics  but  not  in  monarchies ;  that  the 
union  of  civil  and  military  authority  in  the  same  ^ 
office  is  permissible  in  republics  but  not  in  mon- 
archies ;  that  sale  of  public  offices  is  a  useful  method 
of  bestowing  them  in  monarchy  but  not  in  other 
forms  of  government ; l  and  that  sumptuary  laws  are 

1  Montesquieu  holds  that  it  is  a  good  thing,  "  because  it  induces 
the  performance  as  a  family  profession  of  a  duty  which  would  not 
be  undertaken  solely  for  the  sake  of  virtue ;  because  it  commits  every 
one  to  his  duty  and  renders  the  privileged  orders  of  the  state  more 
permanent."  Further  he  argues  that  where  there  is  no  provision  for 
public  purchase,  appointment  to  office  is  procured  through  the  secret 


406  POLITICAL  THEORIES 

appropriate  to  republics  but  not  to  monarchies.  Many 
other  features  of  government  are  also  covered  in  his 
application  of  the  theory  of  distinctive  principles. 
For  our  purpose,  however,  it  will  suffice  to  consider 
particularly  his  doctrine  as  to  the  transformations  of 
the  different  species  of  government. 

4.    Transformation  of  Governments 

It  was  not  in  the  nature  of  Montesquieu's  political 
science  to  attach  importance  to  the  permanence  of 
any  governmental  form  per  se.  The  feeling  of  Aris- 
totle that  revolution  is  deplorable,  and  that  of  Bodin 
that  it  is  inevitable,  are  alike  inconspicuous  in  Mon- 
tesquieu. He  regards  the  existence  and  excellence 
of  any  particular  form  as  so  purely  relative  a  matter, 
and  so  entirely  dependent  upon  other  facts,  that  a 
transformation  requires  neither  approval  nor  dis- 
approval, but  merely  explanation.  The  most  funda- 
mental element  in  the  explanation  is  to  be  found, 
he  declares,  in  the  axiom  that  "the  corruption  of 
every  government  begins  almost  always  with  the 
corruption  of  its  principle."1  The  duration  of  any 
of  the  forms  depends,  that  is,  upon  the  persistence 
in  a  given  society  of  that  particular  spirit  which  is 


purchase  of  the  influence  of  courtiers,  and  that  the  open  market 
would  probably  result  on  the  whole  in  better  service. — Bk.  V,  chap. 
xix.  Montesquieu  himself  held  by  inheritance  the  office  of  vice- 
president  of  the  parlement  of  Bordeaux. 

1  Bk.  VIII,  chap.  i.  His  use  of  the  word  "  corruption "  here 
implies  no  judgment  that  moral  deterioration  is  involved  in  the 
transformation  of  principles. 


MONTESQUIEU  407 

characteristic  of  the  form.  The  passing  of  democracy 
is  at  hand  when  the  feeling  of  true  equality  begins  to 
disappear ;  aristocracy  is  doomed  when  the  spirit  of 
moderation  ceases  to  prevail  among  the  ruling  classes; 
and  monarchy  cannot  endure  when  honour  becomes 
weak  among  the  privileged  orders.  Despotism  is 
unstable  in  its  very  essence;  and  its  duration  is 
determined  by  happy  accidents  that  check  the  work- 
ing of  its  principle. 

As  to  the  character  of  the  change  which  takes 
place  when  the  various  principles  fail,  Montesquieu 
has  no  broad  theory  to  suggest ;  no  cycle  is  presented 
like  those  of  Plato,  Polybius  and  many  of  the  older 
philosophers  down  to  Vico,  through  which  it  is 
almost  inevitable  that  governmental  forms  should 
move.  The  principle  of  democracy  becomes  corrupt 
when  the  spirit  of  equality  either  is  lost  entirely  or 
is  carried  to  excess ;  in  the  first  case  aristocracy  or 
monarchy  is  established,  in  the  second  case  anarchy 
and  despotism  follow.1  The  principle  of  aristocracy 
is  corrupt  when  the  nobility  cease>to  feel  the  perils 
and  responsibilities  of  their  political  power  more  than 
its  delights,  and  when  they  rule  arbitrarily  rather 
than  in  accord  with  law.  When  they  make  them- 
selves hereditary,  aristocracy  has  disappeared,  and 
the  state  is  an  oligarchy.  The  only  transformation 
of  monarchy  which  interests  Montesquieu  is  that 
which  brings  despotism.  This  ensues  when  the 
nobility  cease  to  maintain  their  dignity  and  privi- 
leges, when  in  exchange  for  the  monarch's  favours 

1  Ibid.,  chap.  ii. 


408  POLITICAL   THEORIES 

they  sacrifice  their  independence.1  His  words  here 
point  directly  at  the  policy  of  Richelieu  and  Louis 
XIV,  though  he  names  only  the  Roman  emperors. 

The  inevitableness  of  transformation  in  a  govern- 
ment whose  principle  has  been  transformed  appears 
with  the  utmost  clearness  from  a  consideration  of 
the  relation  of  all  the  laws  and  institutions  to  this 
principle.  Almost  all  laws  and  institutions  are  good, 
Montesquieu  believes,  so  long  as  the  principle  of  the 
system  remains  intact ;  for  all  the  legislation,  manners 
and  morals  will  be  conformed  to  this  principle.  But 
when  the  principle,  or,  in  other  words,  the  spirit  of 
the  society,  is  changed,  the  old  laws  and  institutions, 
being  wholly  out  of  relation  to  the  new  principle, 
are  inherently  vicious  and  contribute  only  to  hasten 
the  general  disorder.2 

One  fact  that  has,  in  Montesquieu's  opinion,  a 
direct  and  decisive  influence  on  the  maintenance  of 
the  principle  of  a  government  is  the  extent  of  terri- 
tory subject  to  it.  He  lays  down  categorically  the 
dogma  that  republican  government  is  appropriate 
only  to  small  territories,  monarchic  government  to 
territory  of  moderate  extent,  and  despotism  to  very 
great  regions.  It  follows,  therefore,  that  any  material 

1  La  monarchie  se  perd  lorsque  le  prince  rapportant  tout  unique- 
ment  a  lui,  appelle  1'Etat  a  sa  capitale,  la  capitale  a  sa  cour,  et  la  cour 
h  sa  seule  personne.  —  Bk.  VIII,  chap.  vi. 

2  He  illustrates  this  point  by  reference  to  the  long  struggles  over 
the  judicial  system  in  the  late  Roman  Republic;  where  successive 
dictators  strove  to  secure  a  system  of  selecting  indices  that  should 
insure  a  proper  administration  of  justice,  but  failed  because  the  whole 
institution  was  adapted  only  to  the  spirit  that  had  passed  out  of  the 
republic. 


REPUBLICS   NOT  PERMANENT  409 

change  in  the  size  of  a  state  will  be  followed  by  a 
transformation  in  the  principle  of  its  government 
and  hence  by  a  change  in  the  form  of  government 
itself.1  Under  such  circumstances  a  republic  has,  in 
the  nature  of  things,  little  chance  of  permanence  ;  for 
expansion  of  its  territory  and  population  is  incom- 
patible with  the  principle  of  its  government,  while, 
on  the  other  hand,  the  scantiness  of  its  population 
leaves  it  no  adequate  means  of  defence  against  the 
encroachments  of  foreign  monarchies.  This  dilemma, 
Montesquieu  believes,  accounts  for  the  appearance  of 
the  federal  republic  as  a  form  of  political  organiza- 
tion. Federation  solves  the  problem  of  providing  for 
necessary  self-defence  without  loss  of  the  republican 
spirit.2 

Montesquieu's  theory  as  to  the  relation  between 
the  form  of  government  and  the  extent  of  territory 
puts  him  in  clear  opposition  to  the  Machiavellian 
theory  of  expansion.  The  Italian  held  that  terri- 
torial growth  was  essential  to  the  life  of  a  state, 
whether  republic  or  monarchy;  the  French  philoso- 
pher holds  that  indefinite  expansion  is  compatible 
only  with  the  principle  of  despotism,  and  that  a 
policy  directed  to  this  end  is  fatal  to  the  existence 
of  republics  and  even  of  monarchies. 

5.    T/ieories  of  Liberty  and  Slavery 

Of  all  the  topics  of  his  great  work  that  give  it 
significance  in  the  history  of  political  science,  Montes- 
quieu's theory  of  liberty  may  probably  be  assigned 

1  Bk.  VIII,  chaps,  xvi  to  xx.  2  Bk.  IX,  chap.  i. 


410  POLITICAL  THEORIES 

the  first  place  in  importance.  The  influence  of  his 
ideas  upon  this  subject  is  discernible  in  all  parts  of 
The  Spirit  of  the  Laws,  though  the  formal  discussion 
of  liberty  and  slavery  is  to  be  found  in  Books  XI, 
XV,  XVI  and  XVII.  Recognizing  the  great  variety 
in  the  conceptions  of  liberty  past  and  present,1  he 
seeks  to  attain  a  high  degree  of  precision  in  his  own 
treatment.  In  its  broadest  sense  liberty  consists,  he 
says,  in  the  belief  that  one  has  that  he  is  acting 
according  to  his  own  will.2  But  there  are  two  species 
of  this  liberty,  political  and  civil.  Political  liberty 
consists  in  the  power  to  act,  not  absolutely  as  one 
wishes,  but  as  one  ought  to  wish ;  or,  making  the 
conception  conform  to  the  broad  definition  of  liberty, 
in  the  security  one  feels  that  he  can  act  thus.  Such 
security  can  exist,  Montesquieu  holds,  only  under  a 
government  that  is  based  on  law ;  therefore  political 
liberty  consists  in  the  security  one  feels  that  he  may 
do  whatever  the  laws  permit.3  Civil  liberty  is  not 
concisely  defined  by  Montesquieu,  but  its  meaning  is 
indicated  by  the  fact  that  it  has  the  same  relation  to 
chattel  slavery  that  political  liberty  has  to  despotism ; 
the  relation,  that  is,  of  logical  contradictory.4  Con- 
cretely civil  liberty  and  political  liberty  are  widely 
different  in  their  incidents,  but  civil  slavery  and 
political  slavery  are  often  hardly  distinguishable. 

*Bk.  XI,  chap.  ii. 

2  La  libertd  philosophique  consiste  dans  Pexercice  de  sa  volonte 
ou  du  moins  (s'il  faut  parler  dans  tons  les  systemes)  dans  1'opinion 
oil  Ton  est  que  Ton  exerce  sa  volonte.  —  XII,  ii. 

8  Bk.  XI,  chap,  iii,  and  Bk.  XII,  chap.  ii. 

4  Compare  the  last  reference  with  Bk.  XV,  chap.  xiii. 


LIBERTY  AND  GOVERNMENT  411 

In  these  definitions  and  distinctions  Montesquieu 
scarcely  achieved  all  the  clearness  and  exactness  at 
which  he  evidently  aimed.  His  chief  preoccupation, 
however,  was  to  set  forth  the  features  of  governmental 
organization  and  action  which  in  his  mind  were  best 
adapted  to  the  ends  of  what  he  called  political  liberty. 
Security  against  human  power  and  caprice  he  held  to 
be  the  essence  of  this  kind  of  liberty.  Subjection  to 
law  but  not  to  man  was  the  solution  of  the  problem, 
and  this  must  be  attained  by  such  distribution  and 
counterbalance  of  the  various  powers  involved  in  the 
administration  of  government  that  abuse  of  any  one 
of  them  should  be  impossible.  In  the  idea  of  sover- 
eignty Montesquieu  manifests  no  interest.  The  term 
is  neither  discussed  nor  defined,  and  it  is  but  casually 
and  infrequently  mentioned.  The  unrestricted  power 
which  it  connotes  is  incompatible  with  Montesquieu's 
conception  of  a  free  government,  no  matter  whether 
the  power  is  possessed  by  a  monarch,  by  an  aristoc- 
racy or  by  a  democracy.  Liberty  can  exist  only 
where  the  possessors  of  governmental  power  are 
subject  to  limitations.1  Not  that  these  limitations 
necessarily  insure  liberty :  power  always  tends  to  be 
abused,  and  unless  a  constitutional  system  is  so 
arranged  that  one  power  is  checked  by  another,  the 
citizen  still  may  lack  that  security  in  which  liberty 
consists.  The  one  constitution  known  to  history  that 
seems  to  have  been  constructed  with  special  reference 

1  La  democratie  et  Paristocratie  ne  sont  point  des  Etats  libres  par 
leur  nature.  La  liberte  politique  ne  se  trouve  que  dans  les  gouverne- 
ments  moderes.  —  XI,  iv. 


412  POLITICAL  THEORIES 

to  the  maintenance  of  political  liberty  is,  in  Montes- 
quieu's opinion,  the  English  constitution.  In  it  the 
separation  of  governmental  powers  and  the  check 
and  balance  of  each  upon  the  others  are  most  per- 
fectly exhibited,  and  Montesquieu  devotes  his  most 
famous  chapter  to  an  analysis  of  this  English  system.1 
The  doctrine  of  the  separation  of  powers  here 
presented,  and  indeed  the  whole  chapter  in  its  essen- 
tial spirit,  are  taken  directly  from  Locke,2  but  a  great 
development  of  the  Englishman's  ideas  is  discoverable 
before  the  discussion  is  completed.  Montesquieu's 
three  powers  that  characterize  every  state  are,  as 
first  set  forth,  precisely  Locke's,  namely,  legislative, 
federative  and  executive.3  In  his  very  next  para- 
graph, however,  he  assigns  the  name  "  executive " 
to  the  second  species,  which  Locke  had  called  federa- 
tive, and  gives  to  the  third  species  the  designation 
"judicial"  (la  puissance  de  juger).  Thus  appears  in 
political  philosophy  for  the  first  time  the  now  com- 
monplace classification  of  the  powers  of  government. 
It  is  to  be  observed,  however,  that  in  the  shape  into 
which  Montesquieu  has  thus  far '  brought  the  matter, 
no  one  of  the  three  powers  is  concerned  with  the 
execution  of  legislation  that  lies  outside  the  field  of 
both  the  law  of  nations  and  civil  law.  His  "  execu- 
tive "  is  concerned  with  peace  and  war,  embassies, 
the  public  safety  and  invasions,  and  his  judicial 

1  Bk.  XI,  chap.  vi. 

2  Supra,  pp.  354-356. 

8  "...  la  puissance  legislative,  la  puissance  executrice  des  choses 
qui  dependent  du  droit  des  gens,  et  la  puissance  executrice  de  celles 
qui  dependent  du  droit  civil." 


THE  SEPARATION   OF  POWERS  413 

power  is  limited  to  the  punishment  of  crimes  and  the 
determination  of  disputes  between  private  citizens.1 
The  whole  range  of  the  executive  duty  which  is  now 
denoted  by  the  term  "civil  administration"  —  the 
carrying  into  effect  of  legislation  that  deals  with 
internal  affairs  —  is  left  out  of  the  classification  by 
Montesquieu.2  Without  noting  the  omission,  how- 
ever, he  begins  within  a  few  paragraphs  to  speak  of 
the  executive  power  as  concerned  with  the  enforce- 
ment of  all  legislation  on  whatever  subject,  and  it  is 
in  this  sense,  rather  than  in  the  very  restricted  sense 
in  which  executive  is  at  first  defined,  that  the  term  is 
used  throughout  the  remainder  of  his  work.8 

Having  thus  adopted  and  expanded  Locke's  analy- 
sis of  governmental  powers,  Montesquieu  proceeds  to 
apply  the  principle  of  check  and  balance.  Each  of 
the  three  powers  must  be  exercised  by  a  different 
organ,  and  only  so  far  as  this  is  provided  for  can  a 
constitution  be  regarded  as  insuring  political  liberty 
to  the  citizen.  Most  European  monarchies  have, 
Montesquieu  thinks,  achieved  the  separation  of  the 
judicial  power  from  the  other  two,  since  the  monarchs 
have  ceased  to  decide  suits  in  person.  But  the  sepa- 

1  "  Par  la  premiere  le  prince  ou  le  magistrat  fait  des  lois  pour  un 
temps  on  pour  toujours,  et  corrige  ou  abroge  celles  qui  sont  faites. 
Par  la  seconde  il  fait  la  paix  ou  la  guerre,  envoie  ou  recoit  des  ambas- 
sades,  etablit  la  surete,  previent  les  invasions.     Par  la  troisieme  il 
punit  les  crimes,  ou  juge  les  differences  des  particuliers." 

2  None  of  his  categories  covers  such  important  governmental  func- 
tions, for  example,  as  those  of  assessing  and  collecting  taxes,  con- 
structing a  road,  or  coining  money. 

3  For  the  defects  of  Montesquieu's  classification  of  governmental 
powers  in  even  its  most  complete  and  generally  adopted  form,  see  the 
acute  criticism  in  Goodnow,  Politics  and  Administration,  pp.  11  et  seq. 


414  POLITICAL  THEORIES 

ration  of  legislative  from  executive  is  to  be  found 
only  in  England.  This  and  a  large  number  of 
other  features  of  the  English  constitution  that  make 
for  political  liberty  are  set  forth  and  justified  by 
Montesquieu  with  great  insight  and  philosophical 
acumen.  The  monarchic  executive,1  the  bicameral 
legislature,  with  one  house  made  up  of  representa- 
tives elected  by  the  people  at  large,  and  the  inde- 
pendent courts,  with  their  juries  of  private  citizens, 
he  regards  as  institutions  based  on  the  soundest 
principles  of  political  science. 

The  interrelationships  of  these  three  organs  which 
the  long  struggles  of  English  constitutional  develop- 
ment had  worked  out  —  the  royal  veto,  the  power  of 
impeachment,  the  responsibility  of  ministers,  the  an- 
nual budget,  the  mutiny  bill  and  the  habeas  corpus  — 
are  all  explained  as  illustrations  of  the  general  prin- 
ciple of  check  and  balance  between  the  three  great 
departments  of  the  government.  Most  fundamental 
in  the  operation  of  the  system  are  the  reciprocal 
restraints  of  executive  and  legislature,  complicated 
by  the  fact  that  the  two  houses  of  the  legislature 
must  be  brought  into  unison.  Montesquieu  per- 
ceives that  the  normal  condition  as  between  these 
three  organs  —  the  king  and  the  two  houses  — 
would  be  deadlock  and  inaction  ;  but  "  the  necessary 

1  That  the  system  which  has  developed  in  England  since  Montes- 
quieu's time  would  not  have  met  with  his  approval  is  indicated  by  the 
following  passage :  Que  s'il  n'y  avoit  point  de  monarque,  et  que  la 
puissance  executrice  fut  connee  a  un  certain  nombre  de  personnes 
tirees  du  corps  legislatif,  il  n'y  auroit  plus  de  liberte,  parce  que  les 
deux  puissances  seront  unies.  —  XI,  vi. 


THE  SEPARATION  OF  POWERS  415 

movement  of  things"  would,  lie  thinks,  force  them 
to  join  in  the  motion.1 

The  constitutional  system  through  which  liberty  is 
secured  in  England  was  derived,  Montesquieu  be- 
lieves, from  the  ancient  Germans  as  described  by 
Tacitus.2  The  separation  of  powers  and  the  recipro- 
cal checks  do  not  appear  in  anything  like  the  same 
degree  in  other  European  governments.  It  can  be 
traced  to  some  extent,  however,  in  the  republics  of 
antiquity,  Montesquieu  believes,  and  he  considers  that 
Aristotle's  "  polity "  and  the  Eoman  constitution  in 
the  best  days  of  the  Republic  embodied  some  essential 
features  of  the  system. 

Important  as  this  guarantee  of  liberty  is,  how- 
ever, it  is  not  itself  conclusive.  Though  the  con- 
stitution may  embody  all  the  features  described 
above,  the  citizen  may  fall  short,  from  another 
point  of  view,  of  that  sense  of  security  which 
is  the  essence  of  liberty.  This  would  be  the  case 
unless  the  laws  in  reference  to  accusations  of  crime 
should  be  framed  on  sound  principles.  Montesquieu 
thus  introduces  in  Book  XII  his  notable  contribu- 

1  Comme  par  le  mouvement  necessaire  des  choses  elles  sont  con- 
traintes  d'aller,  elles  seront  forcees  d'aller  de  concert.  —  XI,  vi. 

2  "  Si  Ton  veut  lire  Padmirable  ouvrage  de  Tacite  sur  les  moeurs 
des  Germains,  on  verra  que  c'est  d'eux  que  les  Anglois  ont  tire  1'idee 
de  leur  gouvernement  politique.     Ce  beau  systeme  a  etc  trouve  dans 
les  bois."    By  this  passage  Montesquieu  makes  himself  the  forerunner 
of  a  school  of  historians  which  had  a  distinguished  career  in  the 
nineteenth  century.     Voltaire  says,  in  commenting  on  this  passage  : 
"  J'aimerais  autant  dire  que  les  sermons  de  Tillotson  et  de  Smalridge 
furent  autrefois  composes  par  les  sorcieres  tudesques,  qui  jugeaient 
des  succes  de  la  guerre  par  la  maniere  dont  coulait  le  sang  des  prison- 
niers  qu'elles  immolaient." 


416  POLITICAL  THEORIES 

tion  to  the  reform  of  criminal  law  and  procedure.  It 
is  not  necessary  for  us  to  follow  him  in  the  details  of 
his  discussion.  Suffice  it  to  say  that  his  spirit  is  that 
which  ultimately  effected  in  Europe  a  transformation 
of  the  whole  system  of  crimes  and  penalties,  through 
the  substitution  of  reason  for  tradition  in  dealing  with 
the  matter.  Montesquieu  maintains,  for  example, 
that  the  death  penalty  should  never  be  inflicted  on 
the  testimony  of  a  single  witness ;  that  all  penalties 
should  be  of  a  character  corresponding  to  the  charac- 
ter of  the  offences  —  that  is,  spiritual  punishment 
for  sacrilege,  fines  for  offences  against  property,  etc. ; 
and  that  accusations  of  treason  (lese-m.ajeste)  should 
be  guarded  with  special  care  against  abuse  to  the 
detriment  of  the  subject. 

Civil  liberty,  as  distinct  from  political  liberty,  is 
nowhere  defined  in  terms  by  Montesquieu,  but  the 
distinction  is  recognized,  and  the  negation  of  civil 
liberty,  i.e.  slavery,  is  systematically  discussed  in 
Book  XY.  Here  the  philosopher  showrs  himself  radi- 
cal and  uncompromising  in  his  contention  that  the 
institution  is  in  its  very  nature  evil.  It  is  bad  for 
the  slave,  because  it  prevents  him  from  self-develop- 
ment ;  it  is  bad  for  the  master,  because  it  tends  to 
make  him  harsh,  sensual  and  cruel.  No  one  of  the 
theories  on  which  slavery  has  been  explained  as 
rational  is  acceptable  to  Montesquieu.  That  a  man 
vanquished  in  war  may  by  contract,  entered  into  to 
save  his  life,  become  justly  the  slave  of  the  victor,  can- 
not stand  as  good  reasoning,  because  the  victor  has  no 
right  to  take  the  life  of  the  vanquished ;  that  a  free 


MONTESQUIEU  ON  SLAVERY  417 

man  may  sell  himself  is  impossible,  for  a  sale  involves 
exchange  of  values,  while  the  man  who  sells  himself 
gets  nothing  and  the  other  party  everything ;  and  if 
slavery  can  come  into  existence  in  neither  of  these 
ways,  the  idea  that  any  one  can  be  born  a  slave  falls 
to  the  ground.  The  origin  of  the  institution  can 
be  explained  by  historical  considerations,  but  this  is 
not  to  justify  it  in  reason.  In  despotic  governments 
civil  subjection  came  into  existence  as  a  concomi- 
tant of  political  subjection,  and  here  it  may  be  said 
to  have  had  some  degree  of  usefulness;  in  warm 
climates,  where  labour  is  particularly  irksome,  it  has 
come  into  existence  as  a  means  of  compelling  men  to 
work,  and  in  this  fact  is  all  the  basis  Aristotle  has 
for  his  theory  of  slaves  by  nature.  But  in  whatever 
degree  these  causes  have  operated  in  other  times  and 
in  other  places,  they  have  not  modified  the  great 
principle  of  natural  reason  that  men  are  born  free 
and  equal ;  and  for  modern  times  and  for  European 
countries,  there  is  no  ground  whatever  on  which  the 
resuscitation  of  the  system  can  be  based.  All  the 
work  that  society  requires  can  be  performed  by  free 
labour,  provided  that  reason,  not  greed,  fix  the  limits 
of  what  is  necessary.  The  modern  suggestions  that 
slavery  would  be  advantageous  for  European  society 
emanate,  Montesquieu  declares,  from  the  luxury  and 
sensuality  of  the  time,  not  from  love  of  the  public 
welfare. 

The  moral  fervour  of  these  chapters  of  Montesquieu 
on  slavery  is  in  marked  contrast  to  the  scientific  calm 
that  pervades  most  of  his  work.  He  feels  himself 

VOL.   II.  2E 


418  POLITICAL  THEORIES 

that  his  heart  rather  than  his  intellect  has  guided  his 
pen.1  Yet  with  all  his  splendid  glow  of  wrath  at  the 
abuses  of  civil  slavery,2  the  effect  of  this  particular 
book  is  hardly  more  impressive  than  that  of  the  one 
devoted  to  political  liberty,  where  the  scientific  spirit 
is  so  carefully  maintained.  Taken  together,  the  two 
put  Montesquieu  in  the  front  rank  of  those  who  in 
the  eighteenth  century  held  high  the  standard  of 
idealism  in  all  that  pertains  to  liberty. 

6.    Theory  of  Climate  and  Physical  Environment 

Montesquieu's  views  on  slavery  have  very  much  in 
common  with  those  of  his  great  predecessor  in  politi- 
cal philosophy,  Bodin.  Not  less  clearly  in  line  with 
Bodin' s  work  is  the  careful  treatment  given  by  Mon- 
tesquieu to  the  influence  of  physical  environment  upon 
social  and  political  institutions.  That  the  doctrine 
of  the  later  writer  is  distinctly  superior  in  scientific 
value  is  but  an  evidence  of  the  great  advance  in 
knowledge  of  the  material  world  that  had  been 
made  between  the  sixteenth  and  the  eighteenth 
centuries. 

Montesquieu  avoids  the  emphasis  laid  by  Bodin  on 
mere  differences  of  latitude  and  longitude,  and  puts 

1  Je  ne  sais  si  c'est  Pesprit  ou  le  cceur  qui  me  dicte  cet  article  ci. 
—  XV,  viii. 

2  See  particularly  chap,  v,  "  D'Esclavage  des  negres,"  in  which  he 
sums  up  with  bitter  irony  the  arguments  for  the  introduction  of 
African  slavery  into  America ;  for  example  :  "  Les  peuples  d'Europe 
ayant  extermine  ceux  de  PAmerique,  ils  ont  du  mettre  en  esclavage 
ceux  de  PAfrique,  pour  s'en  servir  a  defricher  tant  de  terres.  .  .  . 
Ceux  dont  il  s'agit  sont  noirs  depuis  les  pieds  jusqu'k  la  tete ;  et  ils 
ont  le  nez  si  ecrase  qu'il  est  presque  impossible  de  les  plaindre." 


THE  INFLUENCE  OF  CLIMATE          419 

most  stress  on  differences  of  temperature  and  mois- 
ture in  the  air,  and  on  differences  of  fertility  in  the 
soil.  The  basis  of  the  influence  of  climate  on  charac- 
ter is,  he  holds,  the  effect  of  heat  and  cold,  dryness 
and  moist  are,  on  the  organs  of  the  human  body. 
Although  his  physiological  explanation *  of  this  effect 
may  have  its  weaknesses  in  the  light  of  twentieth- 
century  science,  and  though  the  data  of  history  and 
observation  which  he  adduces  in  support  of  his 
theory  would  hardly  stand  the  test  of  serious  criti- 
cism, his  conclusion,  nevertheless,  would  easily  find 
favour  still,  that  climatic  conditions  have  a  direct  con- 
nection with  the  diversity  of  populations  in  respect 
to  both  intellect  and  passions.  Institutions  must 
necessarily  vary,  he  believes,  according  to  the  charac- 
teristics of  the  people.  Of  most  fundamental  impor- 
tance is  the  difference  between  the  energy  and  activity 
wrhich  are  produced  by  the  colder  climates  and  the 
indolence  produced  by  the  warmer.  This  explains, 
for  example,  the  prevalence  of  monasticism  in  warmer 
climates  and  the  prevalence  of  drunkenness  in  the 
colder.  It  explains  also  —  and  in  tracing  this  con- 
nection Montesquieu  displays  some  of  his  cleverest 
analysis — the  greater  degree  of  political  liberty  in 
the  colder  climates,  or  at  least  in  those  climates 
which  either  by  temperature  or  by  humidity  produce 
a  restless  and  irritable  spirit  among  the  people.2 

1  Bk.  XIV,  chap.  ii. 

2  England  is  his  illustration  of  this  point.     See  Bk.  XIV,  chap, 
xiii.     He  agrees  with  Bodin,  however,  that  this  restlessness  is  well 
adapted  to  war  and  ill  adapted  to  diplomacy,  and  that  therefore  Eng- 
land is  apt  to  lose  in  her  treaties  what  she  wins  in  hostilities. 


420  POLITICAL  THEORIES 

It  is  the  relation  between  the  climate  and  liberty 
that  constitutes  the  most  important  feature  of  this 
whole  subject  for  political  philosophy  proper.  Sum- 
marily stated,  his  theory  is  that  every  species  of 
liberty  is  favoured  by  the  colder  climates,  and  slavery 
by  the  warmer.  As  to  political  liberty,  he  illustrates 
his  view  chiefly  by  a  comparison  of  Asia  with  Europe, 
showing  the  general  prevalence  of  despotic  govern- 
ment in  the  former  and  of  more  or  less  free  govern- 
ment in  the  latter.  The  obvious  objection,  that  with 
the  exception  of  its  extreme  southern  projections 
Asia  possesses  the  same  climatic  conditions  as  Europe, 
is  met  by  a  very  interesting  qualification  of  the  prin- 
cipal theory.1  In  Asia,  it  is  pointed  out,  there  are 
extremes  of  hot  and  cold  climate  with  no  broad  belt 
of  temperate  climate  between  them.  The  peoples  to 
the  southward  of  the  great  mountain  system  and 
those  to  the  northward  of  it  are  of  totally  different 
temperaments,  and  hence  the  hardy  and  vigorous 
northerners  readily  conquer  and  reduce  to  servitude 
the  soft  and  effeminate  southerners.  In  Europe,  on 
the  other  hand,  the  climate  changes  by  imperceptible 
degrees  from  the  heat  of  the  south  to  the  cold  of  the 
north ;  adjacent  peoples,  therefore,  do  not  manifest 
widely  different  characteristics,  and  there  is  no  oppor- 
tunity for  the  complete  subjugation  of  any  one  by  its 
neighbour.  Another  influence  that  promotes  the  dis- 
tinction between  the  two  continents  in  respect  to 
political  liberty  is  the  fact  that  in  Asia  the  natural 
geographical  divisions,  as  determined  by  river  sys- 

1  Bk.  XVII,  chap.  iii. 


MONTESQUIEU  ON  POLYGAMY          421 

terns,  mountain  ranges,  etc.,  are  of  vast  extent,  and, 
therefore,  according  to  the  principle  already  noted, 
promote  despotism,  while  in  Europe  the  natural  divi- 
sions are  small  and  therefore  favour  the  compact  com- 
munities to  whom  liberty  is  normal.1 

As  to  civil  liberty,  the  influence  of  climate  has 
been  noted  already  in  our  description  of  Montes- 
quieu's theory  of  slavery.2  The  relaxing  effects  of 
high  temperature  conduce  particularly  to  the  sub- 
jection of  men  to  absolute  control.  The  same  prin- 
ciple, with,  however,  important  modifications  and 
additions,  is  discernible  in  what  Montesquieu  calls 
"  domestic  "  as  distinct  from  "  civil "  slavery.  By 
domestic  slavery  he  means  the  complete  subjection  of 
women  that  prevails  in  Oriental  countries  and  that 
finds  expression  in  the  institution  of  polygamy.8 
Polygamy,  like  civil  slavery,  may  be  explained 
though  it  cannot  be  justified.  It  is  useful  neither 
to  the  race  nor  to  either  sex.  Its  existence  is  due 
partly  to  the  fact  that  in  warm  climates  women 
mature  earlier,  and  earlier  lose  their  charms,  leaving 
men  dissatisfied  with  them ;  partly  to  what  Montes- 
quieu thinks  is  a  fact,  that  in  such  climates  there 
is  naturally  an  excess  of  women ;  and  partly  to  the 
fact  that  in  warm  climates  the  procurement  of  suffi- 
cient food  for  the  support  of  large  families  is  an 
easier  matter  than  in  cold  climates.  The  institution 
is  essentially  akin  to  political  despotism.  It  belongs 
to  peoples  among  whom  tranquillity  is  synonymous 

1  Ibid.,  chap.  vi.  2  Supra,  p.  417. 

»  Bk.  XVI. 


J 


422  POLITICAL  THEORIES 

with  absolute  subordination  of  many  to  one,  and 
that  alone  brings  peace.1 

In  the  same  way  that  climate  is  shown  to  have  a 
definite  relation  to  government,  Montesquieu  shows 
the  influence  of  the  nature  of  the  soil.  This  is  trace- 
able to  topography.  Fertility  belongs  to  the  plains ; 
sterility  to  the  mountains.  On  the  plains,  where 
nature  affords  no  facility  for  resistance  and  defence, 
conquest  means  subjugation  and  tyranny;  in  the 
mountains  abundant  facilities  for  long  resistance 
insure  liberty.2  The  character  of  the  people,  more- 
over, is  hardier  and  more  courageous  where  the 
difficulty  of  getting  food  is  greater.  Several  closely 
related  causes  operate  thus  to  produce*  conditions 
which  bring  political  organization  into  definite  con- 
nection with  environment. 

This  doctrine  of  Montesquieu  as  to  the  influence 
of  soil  on  government  is  but  an  expansion  of  Bodin's 
comments  on  the  relation  between  topography  and 
politics.  The  expansion  exhibits,  however,  some  of 
the  best  features  of  the  later  writer's  philosophy. 

7.   Social,  Economic  and  Religious  Policy 

Fully  one-half  in  bulk  of  the  Spirit  of  the  Laws  is 
concerned  with  the  relation  of  the  laws  to  conditions 

1  Montesquieu  takes  occasion  to  declare  that  the  harem  could 
never  exist  where  the  women  had  the  lightness  and  indiscretion,  the 
likes  and  dislikes,  the  big  and  the  little  passions  of  the  European 
women.    "  Quel  est  le  pere  de  famille  qui  pourroit  etre  un  moment 
tranquille?    Partout  des  gens  suspects,  partout  des  ennemies;  1'Etat 
seroit  ebranle ;  on  verroit  couler  des  flots  de  sang."  —  XVI,  ix.     The 
satirical  allusions  of  the  passage  are  in  the  vein  of  the  Lettres  Persanes. 

2  For  analogous  reasons  islanders  are,  he  thinks,  usually  more  dis- 
posed to  free  government  than  are  continental  peoples.  —  XVIII,  v. 


LAW  AND  THE  NATIONAL  SPIRIT  423 

and  institutions  which  are  distinctively  social,  eco- 
nomic and  religious,  rather  than  political,  in  charac- 
ter. In  the  discussion  of  these  subjects  Montesquieu 
assumes  almost  exclusively  the  attitude  of  the  jurist  ^ 
dealing  with  historical  and  comparative  jurisprudence. 
Here  particularly  appears  the  ancient  concept  of  the 
lawgiver,  prescribing  from  the  heights  of  his  superior 
—  almost  supernatural  —  wisdom  the  rules  for  the 
government  of  lesser  men.  Yet  Montesquieu  keeps 
well  in  touch  with  the  teachings  of  history  and  obser- 
vation, and  his  judgments  as  to  the  method  and  con- 
tent of  legislation  have  nothing  Utopian  about  them, 
however  great  may  appear  at  times  the  influence  of  a 
rational  idealism. 

Perhaps  the  best  illustration  of  his  broad  philosophy 
is  contained  in  Book  XIX,  where  he  considers  the 
relation  of  the  laws  to  the  general  spirit,  the  morals 
and  the  manners  (mceurs  et  manieres)  of  a  nation. 
The  core  of  his  doctrine  here  is  that  there  is  discerni-  ; 
ble  in  any  given  people  taken  as  a  whole  a  spirit  that 
is  peculiarly  its  own,  and  that  legislation  that  does 
not  conform  to  this  general  spirit  cannot  be  of  value. 
A  practical  conclusion  of  importance  is  that  since 
morals  and  manners  form  a  very  large  element  in 
this  general  spirit,  the  legislator  must  make  his 
work  follow  the  prevailing  standards  and  customs. 
Hence  it  can  be  no  function  of  political  law  to  deal 
with  vices  that  are  distinctively  moral.  The  morals 
and  manners  of  a  people  are  to  be  reformed  by  other 
means  than  penal  legislation.1 

1  Bk.  XIX,  chaps,  xi,  xiv,  xvi. 


424  POLITICAL  THEORIES 

The  economic  features  of  society  and  of  law  are 
treated  with  much  fulness  by  Montesquieu.  The 
great  questions  turning  upon  the  size  and  increase 
of  the  population,  the  causes  and  remedies  of  pauper- 
ism, and  theories  of  charitable  relief  are  discussed 
at  length  in  a  spirit  that  suggests  very  strongly  the 
development  of  economic  science  that  was  now  soon 
to  receive  exact  form  through  Adam  Smith.  Par- 
ticularly noteworthy  in  this  respect  are  Montesquieu's 
chapters  on  commerce,  money  and  exchange.1  His 
views  in  respect  to  commerce,  both  in  its  historical 
development  and  in  its  essential  principles,  are  of 
special  significance.  He  is  influenced  here  more  or 
less  by  the  doctrines  of  the  ancient  philosophy  which 
he  knew  and  loved  so  well,  but  he  exhibits  also  a 
full  consciousness  of  the  forces  which  worked  to 
transform  the  face  of  the  earth  in  the  seventeenth 
and  eighteenth  centuries.  ,His  forms  of  government 
he  brings  into  relation  with  commerce  by  the  principle 
that  the  basis  of  foreign  trade  is  different  in  mon- 
archies from  what  it  is  in  republics.  In  monarchy 
the  foundation  of  the  trade  is  the  luxury  of  the 
upper  classes,  demanding  commodities  from  abroad 
to  satisfy  their  cultivated  tastes,  while  in  republics 
the  motive  of  the  commercial  development  is  merely 
the  attainment  of  wealth  by  those  who  take  part  in 
it.  Related  to  this  distinction  is  his  conclusion  that 
banks  and  great  corporations,  the  instrumentalities 
of  highly  developed  commerce,  are  not  well  suited 
to  monarchy,  inasmuch  as  they  promote  excessive 

1  Bks.  XX,  XXI  and  XXII. 


MONTESQUIEU  ON  COMMERCE  425 

fortunes  among  the  citizens,  while  the  nature  of 
monarchy  requires  the  prince  to  stand  far  above 
all  his  subjects  in  respect  to  wealth.1  He  sees 
reason,  moreover,  why  great  monopolistic  commercial 
corporations  should  not  be  tolerated  in  republics 
when  individual  effort  and  competition  could  accom- 
plish the  same  ends.  The  relation  of  commerce  to 
his  favourite  theory  of  monarchy  is  further  illustrated 
by  his  dogma  that  the  nobility  should  be  excluded 
from  commercial  pursuits.  Such  pursuits  are  incom- 
patible with  the  principle  on  which  class  privilege 
rests;  and  moreover  the  wealth  and  power  which 
arise  from  successful  commerce  have  their  proper 
function  in  enabling  their  owners  to  qualify  for 
entrance  into  the  ranks  of  the  nobility.  Once  in 
the  privileged  order,  a  man  should  leave  the  profits 
and  opportunities  of  commercial  life  to  others.  Thus 
is  created,  Montesquieu  thinks,  that  noblesse  de  la  robe 
which  is  so  indispensable  an  element  in  the  properly 
organized  monarchic  state.2 

The  relation  of  the  laws  to  religious  and  ecclesias- 
tical conditions  is  discussed  in  a  spirit  of  reverence 
for  Christianity  as  unquestionable  divine  truth.  At 
the  same  time  there  are  many  evidences  of  a  scientific 
detachment  that  produces  doctrines  of  a  rationalistic 

1  Bk.  XX,  chap.  x.     There  is  here  probably  a  reflection  of  the 
doctrine  of  Harrington  that  the  balance  of  property  and  the  balance 
of  political  authority  must  be  in  the  same  hands.    Montesquieu  says  : 
to  introduce  bankers  and  commercial  corporations  into  monarchy, 
"  c'est  supposer  1'argent  d'un  cote  et  de  1'autre  la  puissance ;  c'est-a- 
dire,  d'un  cote  la  faculte  de  tout  avoir  sans  aucun  pouvoir,  et  de 
1'autre  le  pouvoir  avec  la  faculte  de  rien  du  tout." 

2  Bk.  XX,  chap.  xxii. 


426  POLITICAL  THEORIES 

and  even  Machiavellian  character.1  Disregarding  all 
questions  of  relative  truth  or  falsity  in  the  creeds, 
Montesquieu  finds  that  Christianity  is  best  suited  to 
nations  having  limited  governments,  Mohammedanism 
to  those  subject  to  despotism ;  and  that,  "  humanly 
speaking,"  the  limits  of  Christianity  and  Mohamme- 
danism have  been  determined  largely  by  climate.2  As 
to  the  two  branches  of  Christianity,  Catholicism  is 
best  suited  to  monarchy,  Protestantism  to  republican 
government.3  There  is  inevitably  a  close  relation 
between  the  laws  of  the  prevailing  religion  and  the 
political  and  civil  laws  of  a  nation.  Where  the 
restraints  of  religion  are  slight,  the  penalties  of  civil 
law  must  be  more  severe;  where  the  political  law  is 
inadequate,  the  rules  of  religion  must  supplement  it.4 
On  the  question  of  toleration,  Montesquieu  presents 
no  abstract  theory  but  lays  down  certain  practical 
maxims.  Assuming  that  toleration  of  a  religion  is 
not  at  all  an  approval  of  it,  he  declares  that  where 
a  state  permits  the  existence  of  several  religions,  it 
must  in  the  interest  of  public  order  oblige  them  to 
tolerate  one  another.  The  most  general  principle  of 
good  policy  would  be :  no  new  religion  shall  be  ad- 
mitted into  a  nation  if  it  can  be  kept  out;  once 
there,  however,  it  must  be  tolerated.5  Above  all,  the 

1  Montesquieu  was  violently  attacked  by  theological  critics  and 
was  accused  of  Spinozism  and  other  serious  heresies.     For  his  formal 
reply  to  these  critics,  see  his  Defense  de  V Esprit  des  Lois,  published 
in  1749. 

2  Bk.  XXIV,  chaps,  iii,  xxvi.  »  Ibid.,  chap.  v. 

4  Montesquieu  illustrates  by  the  "  truce  of  God  "  as  a  limitation 
on  the  right  of  private  war  in  the  Middle  Ages.  —  XXIV,  xvi. 

6  Bk.  XXV,  chaps,  ix,  x.     This  doctrine  was  assailed  as  justifying 


THE  IDEAL  OF  LEGISLATION  427 

employment  of  penal  legislation  to  effect  changes  in 
religion  must  be  avoided.  Even  more  than  morals 
and  manners,  religion  lies  outside  the  range  of  human 
compulsion.1 

This  last  maxim  of  policy  illustrates  the  principle 
which  is  most  characteristic  of  Montesquieu's  spirit 
as  legislator.  The  relations  of  social  life  fall  into 
distinct  categories  which  philosophy  can  make  recog- 
nizable. For  each  category  a  distinct  body  of  rules 
of  legislation  is  necessary ;  hence  the  various  species 
of  law  (droit),  —  the  natural,  divine,  ecclesiastical, 
political,  etc.  The  climax  of  rational  achievement 
by  man  is  the  assignment  of  every  subject  of  legisla- 
tion to  its  proper  class.2  In  the  development  and 
illustration  of  this  dogma,  Montesquieu  presents  one 
of  his  most  suggestive  and  characteristic  books.  He 
points  out  the  evils  that  result  when  civil  laws  en- 
croach upon  and  transgress  the  laws  of  nature ;  when 
the  civil  and  the  ecclesiastical  or  canon  law  are  not 
properly  delimited;  and  when  the  rules  peculiar  to 
civil  law  are  applied  to  conditions  that  belong  under 
the  political  law  or  the  law  of  nations,  and  con- 
versely.3 Finally  he  introduces  the  useful  distinction 

the  exclusion  of  Christian  missionaries  by  heathen  princes.  Montes- 
quieu's reply  was  that  the  true  religion  was  ipso  facto  excepted  from 
the  application  of  his  principle. 

1  Ibid.,  chap,  xii ;  compare  Bk.  XIX,  chap.  xiv. 

2  Bk.  XXVI,  chap.  i. 

8  For  example,  Montesquieu  holds  that  political  law  secures  the 
liberty  of  citizens,  civil  law  their  property ;  it  is  wrong  therefore  to 
take  private  property  by  political  law ;  that  is,  to  violate  the  right  of 
property  in  the  name  of  liberty.  On  the  other  hand,  such  a  ques- 
tion as  that  of  the  succession  to  the  public  domain  or  other  ap- 
purtenances of  sovereignty  must  not  be  determined  by  the  rules  of 


428  POLITICAL  THEORIES 

between  police  regulations  and  laws  proper,  and  enters 
his  protest  against  legislation  and  administration  that 
confound  the  two.1 

8.   Summary  and  Conclusion 

A  broad  view  and  summary  estimate  of  Montes- 
quieu as  a  political  philosopher  must  centre  attention 
on  the  scope  and  method  of  his  thought  and  his 
theory  of  liberty.  Under  these  three  categories  may 
be  gathered  all  that  is  most  distinctive  in  his  work. 

In  content  Montesquieu's  philosophy  is  practically 
unique  among  the  great  systems  that  marked  the 
history  of  political  speculation  up  to  his  time. 
Plato,  Aristotle,  Aquinas,  Bodin,  Suarez  and  Pufen- 
dorf,  all  suggest  themselves  when  one  inquires  for  a 
body  of  thought  comparable  to  The  Spirit  of  the  Laws. 
But  no  one  of  these  stands  on  all  fours  with  it.  To 
mention  only  the  salient  points  of  distinction,  Plato 
and  Pufendorf  assign  to  ethical  doctrines  an  impor- 
tance in  politics  that  is  entirely  neglected  by  Montes- 
quieu ;  Aquinas  and  Suarez  differ  from  him  likewise 
in  respect  to  the  importance  of  theological  doctrine ; 
while  Aristotle  and  Bodin,  close  to  him  in  many 
respects,  are  widely  different  in  the  attention  which 
they  devote  to  the  general  theory  of  the  state  in  its 
nature  and  origin,  and  to  the  fundamental  principles 
of  public  law  —  topics  that  are  treated  in  only  the 
most  casual  and  perfunctory  way  by  Montesquieu. 

civil  law,  since  the  matter  is  wholly  in  the  field  of  political  law. 
—XXVI,  xv,  xvi. 
1  Ibid.,  chap.  xxiv. 


MONTESQUIEU  ON  NATURE  429 

His  field  is,  to  employ  the  terms  of  modern  political 
science,  Politik  rather  than  StaatsleJire  or  Staatsrecht ; 
that  is  to  say,  he  seeks  to  set  forth,  not  the  principles 
on  which  the  existence  and  organization  of  political 
society  must  be  explained,  but  the  principles  which 
underlie  and  determine  the  activities  of  such  a  society, 
assuming  its  existence  and  organization.  This  field 
of  speculation  is  in  a  general  way  the  same  as  that 
of  Machiavelli,  but  the  variety  of  subjects  included 
in  Montesquieu's  survey,  as  well  as  the  depth  and 
thoroughness  with  which  he  investigates  them,  puts 
his  work  wholly  beyond  comparison  with  that  of  the 
Italian  in  respect  to  scope.  From  this  point  of  view 
The  Spirit  of  the  Laws  may  be  classed  as  properly 
under  social  science  as  under  political  science. 

In  respect  to  method,  Montesquieu  must  be  classed 
with  Aristotle,  Machiavelli  and  Bodin,  as  representa- 
tive of  the  historical  and  inductive  school.  Like  all 
these  predecessors,  moreover,  he  was  determined  more 
or  less  by  an  ideal,  while  seeking  in  objective  phenom- 
ena the  basis  of  his  conclusions.  The  conception  of 
"  nature,"  as  the  criterion  by  which  in  last  instance 
the  institutions  known  through  history  and  observa- 
tion are  to  be  tested,  recurs  frequently  throughout  his 
work.  Thus  slavery  and  polygamy,  though  explain- 
able by  causes  beyond  the  control  of  man,  are,  never- 
theless, he  explains,  not  for  this  reason  to  be  regarded 
as  "natural,"  or  rationally  justifiable.  No  institu- 
tion, however  precisely  it  may  be  traced  to  the  influ- 
ence of  physical  environment,  is  warranted  by  the 
philosopher  to  be  socially  and  politically  sound 


430  POLITICAL  THEORIES 

unless  it  conforms  to  the  requirements  of  "nature." 
In  assuming  this  ground,  Montesquieu  yields  to  the 
intellectual  influences  of  his  time ;  but  he  is  far  less 
successful  than  his  contemporaries  of  the  a  priori 
school  in  formulating  and  consistently  maintaining  a 
clear  conception  of  the  standard  which  he  agrees  with 
them  in  setting  up. 

In  another  respect,  however,  he  makes  a  distinct 
advance  over  his  predecessors  in  the  use  of  the 
method  of  history  and  observation.  Machiavelli  and 
Bodin,  and  in  a  less  degree  Aristotle,  had  confined 
their  observations  and  inductions  to  nations  which 
represented  a  considerable  achievement  in  civilization 
and  enlightenment.  Montesquieu,  following  a  ten- 
dency which  had  become  pronounced  since  the  dis- 
covery of  new  lands  and  peoples  in  the  Indies  and 
America,  attached  rather  disproportionate  significance 
to  the  laws  and  institutions,  the  morals  and  manners, 
of  the  remote  and  uncivilized  nations,  concerning 
which  more  or  less  authentic  information  had  become 
available.  Hence  his  frequent  resort  to  the  Japanese 
and  Chinese  for  facts  on  which  to  base  his  social  and 
political  dogmas ;  and  hence  the  numerous  instances 
in  which  he  selects,  as  a  sufficient  support  for  a 
shrewd  and  ingenious  formulation  of  principle,  some 
particularly  fantastic  fable  about  the  customs  and 
ideas  of  Tartars,  Africans  or  South  Sea  Islanders. 
He  is  as  uncritical  in  the  use  of  such  matter  as 
Machiavelli  was  in  the  use  of  Roman  history ;  but  in 
the  one  case,  as  in  the  other,  the  method  was  at  bot- 
tom sound  and  the  insight  and  genius  of  the  philoso- 


THE  THEORY  OF  LIBERTY  431 

pher  achieved  results  that  were  valuable  despite  the 
defective  manner  in  which  the  method  was  employed. 
The  widening  of  the  field  in  which  history  and  obser- 
vation were  to  operate  was  a  fact  of  the  first  impor- 
tance in  political  and  social  science,  and  Montesquieu 
is  entitled  to  all  credit  for  his  recognition  of  this  im- 
portance, whatever  the  errors  into  which  he  was  led 
by  his  enthusiasm  for  the  novelties  brought  within 
his  reach. 

In  his  theory  touching  liberty,  Montesquieu,  though 
moved  by  the  same  spirit  that  had  been  working 
for  a  century  in  the  rationalizing  philosophy  of 
Europe,  placed  himself  on  different  ground  from 
that  assumed  by  any  of  his  predecessors.  Their  doc- 
trine, especially  as  summed  up  by  Locke,  had  de- 
fined and  defended  liberty,  both  political  and  civil, 
by  means  of  the  dogma  of  natural  rights.  These 
rights  marked  out  a  sphere  for  the  individual  within 
which  government  could  not  in  nature  or  reason 
intrude.  Liberty  existed  when  and  so  far  as  the 
freedom  of  action  by  the  state  was  restricted.  In 
Montesquieu,  however,  we  hear  little  or  nothing  of 
natural  rights.  The  scope  of  governmental,  that  is 
legislative,  activity  is  not  regarded  as  limited  by 
any  group  of  privileges  inhering  in  the  individual. 
Liberty  is  distinguished  into  two  species,  political 
and  civil,  and  civil  liberty,  though  ascribed  in  a  way 
to  "  nature,"  appears  to  depend  in  last  analysis  upon 
social  expediency.  Political  liberty,  however,  is  de- 
fined as  dependent  not  upon  the  exclusion  of  govern- 
ment or  state  from  any  field  of  action,  but  chiefly 


432  POLITICAL  THEORIES 

upon  the  method  through  which  action  in  any  field 
is  carried  on.  There  is  in  Montesquieu  small  sug- 
gestion of  that  individualism  which  had  appeared  in 
some  measure  in  Locke,  and  which  was  destined  soon 
to  have  a  great  vogue  in  political  speculation.  Not 
the  rights  of  man,  but  the  separation  of  powers  in 
government,  was  the  essential  feature  in  the  concept 
of  liberty  that  characterized  The  S2nrit  of  the  Laws. 

This  doctrine  of  liberty  was  closely  associated  with 
the  theory  of  monarchy  which  was  so  conspicuous 
throughout  Montesquieu's  philosophy.  He  was  con- 
cerned to  present  a  system  through  which  the  French 
kingdom  could  be  at  the  same  time  justified  and  re- 
formed. The  reform,  he  conceived,  might  come 
through  such  separation  of  the  legislative  from  the 
executive  department  of  government  as  had  been 
effected  in  England ;  the  justification  he  set  forth  in 
the  theory  of  class  privilege  as  an  essential  feature 
in  the  nature  of  true  monarchy,  and  "honour"  as 
its  characteristic  principle.  France  was  to  him  too 
large  a  nation  ever  to  have  republican  government. 
It  could,  however,  have  liberty  under  such  a  system 
of  organization  as  he  supposed  he  had  found  in 
England.  Yet  he  was  far  from  suggesting  that  the 
search  for  liberty  through  reform  should  bring  radical 
transformation.  There  is  no  more  powerful  or  more 
charming  passage  in  The  Spirit  of  the  Laws  than 
that  in  which  he  insists  that  every  nation  has  an 
esprit  general  which  is  peculiar  to  itself  and  which 
should  not  be  interfered  with  by  law,  and  depicts  in 
a  few  sentences  the  general  spirit  of  his  own  country- 


SUMMARY  AND   CONCLUSION  433 

men.1  This  spirit  he  would  at  all  hazards  preserve. 
The  reciprocal  reaction  of  legislation  on  the  one 
hand  and  morals  and  manners  on  the  other  is  always 
in  the  mind  of  the  philosopher;  but  while  he  does 
not  question  the  right,  he  distinctly  rejects  the  ex- 
pediency, of  deliberate'  intrusion  by  the  legislator  in 
the  latter  field. 

Montesquieu  in  the  middle  of  the  eighteenth  cen- 
tury, like  Machiavelli  at  the  beginning  of  the  six- 
teenth, stands  more  or  less  isolated  from  the  general 
current  of  political  theory  as  we  can  now  mark  its 
course.  The  scope  and  method  of  The  Spirit  of  the 
Laws  find  little  imitation  in  the  philosophy  of  the 
eighteenth  century.  While  Montesquieu  undertook 
to  blend  politics  with  jurisprudence,  economics  and 
general  social  science,  the  tendency  of  his  contempo- 
raries and  his  successors  was  sharply  to  differentiate 
these  various  sciences;  and  while  he  stood  for  his- 
tory, observation  and  broad  generalization  as  the 
method  of  approach  to  political,  economic  and  social 
truth,  they,  with  few  exceptions,  set  up  the  absolute 
standard  of  "nature "and  deduced  from  their  concep- 
tion of  this  entity  the  doctrines  which  they  held  to 
be  of  universal  validity.  Though  the  spirit  of  Mon- 
tesquieu came  to  its  own  after  several  generations, 
and  contributed  much  to  shape  the  political  theory  of 
the  nineteenth  century,  the  philosophy  that  domi- 
nated the  stirring  politics  with  which  the  eighteenth 
century  closed  was  that  whose  scope  and  method 

i  Bk.  XTX,  chaps,  iv-vi. 

VOL.  II.  —  2  F 


434  POLITICAL  THEORIES 

were^  exemplified  in  a  work  that  was  published  four- 
teen years  after  the  Esprit  des  Lois.  That  work 
was  the  Contrat  Social  of  Rousseau. 

X  (tf  SELECT  REFERENCES 

BLUNTSCHLI,  Geschichte,  pp.  298-316.  BRUNETIERE,  "  Mon- 
tesquieu," in  Etudes  critiques  sur  Vhistoire  de  la  litterature  fran- 
$aise,  4™  serie,  pp.  243-265.  FLINT,  History  of  the  Philosophy 
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436  POLITICAL  THEORIES 

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438  POLITICAL  THEORIES 

Leibnitz. 

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442  POLITICAL  THEORIES 

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English  Political  Philosophy,  from   Hobbes    to   Maine. 

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Minor  Works.     With  Critical  Remarks,  etc.,  by  Alexander 
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444  POLITICAL  THEORIES 

Hancke,  E. 

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Studies  in  International  Law.     Oxford,  1898. 
Horn,  Ignatz  Eduard. 

Spinoza's  Staatslehre.     2te  Ausgabe.    Dresden,  1863. 
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The  English  Church  from  the  Accession  of  Charles  I  to 

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Huldreich  Zwingli.     New  York  and  London,  1901. 
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Martin  Luther.     New  York  and  London,  1898. 
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Johann   Calvin,  seine  Kirche  und   sein   Staat  in   Genf. 

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A  History  of  England  in  the  Eighteenth  Century.     7  vols. 

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Source  Book  of  English  History.     New  York,  1900. 
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The  History  of  England.    4th  ed.    5  vols.    London,  1849. 
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Boman  Canon  Law  in  the  Church  of  England.     London, 

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The  Life  of  John  Milton,  narrated  in  connection  with  the 


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Political,  Ecclesiastical    and  Literary  History   of  his 
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Les    Publicistes    de    la    Eeforme    sous    Francois   II   et 

Charles  IX.     Paris,  1903. 
Menzel,  A. 

Wandlungen  in  der  Staatslehre  Spinozas.     Stuttgart,  1898. 
Merriam,  C.  Edward. 

A  History  of  American  Political  Theories.     New  York, 

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Michel,  Henri. 

L'Ide'e  de  PlStat.    2me  ed.    Paris,  1896.    Essai  critique  sur 
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Morley,  John. 

Oliver  Cromwell.     New  York,  1901. 
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3  vols.     New  York  and  London,  1901. 
Niischeler,  Heinrich. 

Die  Staatslehre  des  Thomas  Hobbes.     Zurich,  1865. 
Nys,  Ernest. 

Le   Droit  de   la  Guerre  et  les  precurseurs  de  Grotius. 

Bruxelles,  1882. 

Les  Origines  du  droit  international.     Bruxelles,  1894. 
Oncken,  Wilhelm. 

Das  Zeitalter  Friedrichs  des  Grossen.     2  Bde.      Berlin, 

1881.     Esp.  BuchV. 
Osgood,  Herbert  L. 

"  The  Political  Ideas  of  the  Puritans,"  in  Political  Science 

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An  Introduction  to  the  History  of  the  Science  of  Politics. 

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Spinoza,  his  Life  and  Philosophy.     2d  ed.     London,  1899. 
History  of  the  Law  of  Nature.     In  Columbia  Law  Eeview, 

Vols.  I  and  II.     New  York,  1901-1902. 
Expansion  of  the  Common  Law.     Boston,  1904. 
Pollock,  Sir  Frederick,  and  Maitland,  Frederic  William. 

The  History  of  English  Law  before  the  Time  of  Edward 
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Canons  and  Decrees  of  the  Council  of  Trent,  translated, 
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from  his  Writings.  Minneapolis,  1903.  (Contains  im- 
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ters from  Hobbes's  other  works.) 


INDEX 


Agreement  of  the  People,  formula- 
tion of,  238 ;  bill  of  rights  in, 
239. 

Althusius :  chief  features  of  his  work, 
61 ;  on  contract  in  society  and 
government,  62  ;  on  sovereignty, 
63 ;  on  magistrates,  64 ;  on  tyr- 
anny, 65;  on  functions  of 
government,  66 ;  on  forms  of 
government,  67  ;  indebtedness  to 
Bodin,  93 ;  compared  with  Gro- 
tius  on  sovereignty,  183 ;  com- 
pared with  Locke  as  to  single 
form  of  state,  356. 

Anabaptists,  4. 

Aquinas :  followed  by  Spanish  ju- 
rists, 134 ;  leading  authority  of 
Suarez,  135  ;  on  law  of  war,  173 ; 
followed  by  Fortescue,  201  ;  com- 
pared with  Montesquieu,  428. 

Argenson,  Marquis  d',  373,  392. 

Aristocracy,  Melanchthon's  prefer- 
ence for,  23  ;  Calvin's  preference 
for,  28  ;  Bodin  on,  107  ;  aimed  at 
by  League  and  Covenant,  227  ; 
Harrington's  theory  of  a  natural, 
251 ;  Sydney's  preference  for, 
343  ;  Vico  on,  386  ;  principle  of 
(Montesquieu),  400. 

Aristotle :  Melanchthon's  admira- 
tion of,  15 ;  model  for  Bodin  on 
revolutions,  108  ;  general  relation 
of  Bodin  to,  121-123;  followed 
by  Harrington,  248  ;  followed  by 
Montesquieu,  402  ;  compared  with 
Montesquieu,  428-429. 

Associations,  Althusius's  theory  of, 
62  ;  Bodin's  theory  of,  88-89,  91. 


Barclay,  his  works  against  monarch- 
omachs  and  Bellarinin,  131. 

Bellarmin  :  on  forms  of  government, 
128  ;  on  power  of  Pope  in  tempo- 
rals, 129  ;  refuted  by  Hobbes,  299. 

Beza,  Theodore,  refutes  theory  of 
toleration,  36. 

Bishops,  see  Episcopacy. 

Bodin :  general  character  of  his 
politics,  81 ;  his  philosophy  of 
history,  83 ;  juristic  ideas,  84 ; 
on  the  law  of  nature,  85 ;  defini- 
tion of  state,  86 ;  on  origin  of 
state,  87  ;  on  civil  associations,  89, 
91 ;  essence  of  state,  90  ;  on  slav- 
ery, 91 ;  on  citizenship,  93  et  seq.  ; 
on  sovereignty,  96  et  seq.  ;  on  law 
and  custom,  102 ;  on  forms  of 
state  and  government,  103  et 
seq.  ;  on  revolutions,  108  et  seq.  ; 
on  practical  questions  of  policy, 
111 ;  on  freedom  of  religion,  112  ; 
on  the  influence  of  climate,  113; 
on  organs  of  government,  115 ; 
on  economic  questions,  117;  on 
treaty  making  and  keeping,  118 ; 
on  a  censorship,  119 ;  relation  to 
Machiavelli  and  Aristotle,  120- 
122  ;  to  Montesquieu,  123;  418, 
428  ;  resemblance  of  Grotius  to, 
160 ;  on  law  of  nations  and  war, 
173 ;  influences  Grotius  on  sov- 
ereignty, 181,  183 ;  comparison 
of  Hobbes  with,  264  ;  paralleled 
by^Hobbes  on  corporations  and 
law,  292 ;  resemblance  of  Vico 
to,  389. 

Boisguilbert,  333. 


VOL.  ii.  —  2o 


449 


450 


INDEX 


Bolingbroke,  a  Tory  leader,  372  ;  his 
practical  politics,  378;  on  the 
English  constitution,  379  ;  on  the 
original  contract,  381. 

Bossuet :  tutor  of  Dauphin,  325 ;  his 
general  principles  and  method, 
326  ;  on  royalty,  328  ;  on  passive 
obedience,  329  ;  on  Gallican  inde- 
pendence, 330. 

Bracton,  198. 

Brownism,  230. 

Buchanan  :  distinguishes  king  from 
tyrant,  56 ;  on  origin  of  society 
and  government,  57 ;  on  function 
of  king,  57-58;  on  the  tyrant, 
68 ;  on  contract  between  king 
and  people,  59;  on  tyrannicide, 
60 ;  teaching  repudiated  by  James 
I,  215 ;  theory  adopted  in  Scot- 
land, 224. 

Calvin :  attitude  toward  Anabaptists, 
4 ;  method  and  influence  of  his 
writings,  26  ;  on  relation  of  church 
and  state,  27  ;  on  the  ends  of  civil 
government,  28;  on  passive  obe- 
dience, 29  ;  on  limited  monarchy, 
30;  his  system  at  Geneva,  31- 
33. 

Campanella :  his  unique  philosophy, 
149 ;  his  City  of  Sol,  150 ;  rela- 
tion to  Plato  and  More,  152. 

Castalion,  theory  of  toleration,  36. 

Catherine  de'  Medici,  39 ;  and  the 
massacre  of  St.  Bartholomew's, 
42. 

Charles  I  of  England  :  his  conflict 
with  Parliament,  219. 

Charles  II  of  England:  relations 
with  Hobbes,  264,  268;  with 
Louis  XIV,  335;  policy  as  to 
dissenters  and  Catholics,  337-338. 

Charles  V,  Emperor,  5 ;  Luther  on 
submission  to,  14 ;  policy  in 
Netherlands,  44 ;  effect  of  Span- 
ish expansion  under,  133. 

Charles  IX  of  France,  40. 


Church  and  state  :  Zwingli  on  rela- 
tion of,  24-25  ;  Calvin  on  relation 
of,  27  ;  the  relation  in  Geneva,  31- 
33  ;  Hobbes  on  relation  of,  296  et 
seq.  ;  Locke  on,  365-366. 

Citizen,  defined  by  Bodin,  94. 

Climate,  see  Physical  environment. 

Coke,  Sir  Edward  :  opposed  prerog- 
ative courts,  214 ;  his  conception 
of  law  attacked  by  Hobbes,  295. 

Commerce,  Montesquieu  on,  424. 

Common  law  (English)  :  beginnings 
of,  197 ;  relation  to  Roman  law, 
198;  tempered  by  equity,  199; 
Fortescue's  eulogy  of,  203  ;  Coke's 
theory  of,  214 ;  made  basis  of  Par- 
liament's case  against  king,  220  ; 
influence  of,  in  Puritan  Revolu- 
tion, 223. 

Commonwealth  (English),  estab- 
lished by  army,  235. 

Commonwealth  (as  a  form  of  gov- 
ernment), Harrington's  theory 
of,  251. 

Conscience,  freedom  of,  see  Tolera- 
tion. 

Constitution,  written,  see  Agree- 
ment of  the  People. 

Contract  theory  of  government : 
involving  God,  king  and  people, 
49  et  seq.;  involving  king  and 
people  only,  51-54  ;  Althusius  on, 
62 ;  general  idea  of  monarcho- 
machs  on,  76,  79  ;  Suarez  on,  146  ; 
Grotius  on,  180  ;  Hooker  on,  211^; 
in  New  England,  231 ;  Filmer's  at- 
tack on,  256  ;  Hobbes's  develop- 
ment of,  276  et  seq.;  Spinoza's 
attitude  toward,  312  ;  Pufendorf 's 
version  of,  322-323  ;  Locke's  doc- 
trine, 349  et  seq.;  Bolingbroke's 
ideas  on,  380-381  ;  Hume's  refu- 
tation of,  381-384. 

Covenant,  Scottish  National,  224. 
See  also  Contract. 

Cromwell :  sides  with  army,  235 ; 
opposes  Levellers,  237;  as  Lord 


INDEX 


451 


Protector,    241 ;     supported    by 
Milton,  246. 

Cusanus,  followed  by  inonarcho- 
niachs,  76-77. 

Democracy:  Bodin  on,  107  ;  guarded 
against  by  League  and  Covenant, 
227  ;  elements  of,  in  Brownism, 
230;  Spinoza  on,  317;  Sydney's 
dislike  of,  343  ;  principle  of  (Mon- 
tesquieu), 400. 

Despotism,  Montesquieu's  concep- 
tion, 399,  401. 

Divine  right  of  kings :  Barclay  on, 
131 ;  James  I  on,  215  et  seq. ; 
in  England  at  Restoration,  254, 
340 ;  Filmer's  version  of,  258 
et  seq.;  Bossuet's  exposition  of, 
326  et  seq.  ;  maintained  by  Horn, 
332. 

Duplessis-Mornay,  see  Vindicice. 

Dutch  Republic,  see  Netherlands. 

Elizabeth  of  England,  39  ;  autocracy 
of,  40  ;  excommunication  of,  131. 

England:  establishment  of  Protes- 
tantism in,  6;  an  absolute  mon- 
archy (Bodin),  105 ;  legally  and 
politically  analogous  with  Rome, 
192  ;  constitutional  growth  of,  193 
et  seq.  ;  growth  of  the  common  law 
in,  197  et  seq. ;  Fortescue  on  law 
of,  203  ;  Tudor  absolutism  in,  206  ; 
Protestantism  adopted  in,  208; 
politics  under  James  I,  212  et  seq.  ; 
under  Charles  I,  219  etseq.  ,*  under 
the  Commonwealth,  234  et  seq. ; 
under  Charles  II,  335  et  seq. ; 
under  James  II,  337  et  seq.  ;  after 
the  Revolution,  371 ;  influence  of, 
on  Montesquieu,  393 ;  Montes- 
quieu on  constitutional  liberty  in, 
414. 

Ephors,  Melanchthon  on,  21 ;  Cal- 
vin on,  30  ;  Althusius  on,  64. 

Episcopacy:  James  I's  defence  of, 
217  ;  overthrown  in  Scotland,  224 ; 


overthrown  in  England,  225-226  ; 
attitude  after  the  Restoration,  336. 

Equality:  not  essential  among  citi- 
zens (Bodin),  94  ;  English  Level- 
lers' doctrine  of,  236;  Filmer's 
rejection  of,  256  ;  Hobbes's  theory 
of,  269. 

Estates :  possess  right  to  resist  ty- 
rant (  Vindicm} ,  51, 64 ;  Althusius 
on,  64  ;  Mariana  on,  72  ;  relation 
to  people  (monarchomachs),  79. 

Expression,  freedom  of :  Bodin's 
views  as  to,  112  ;  a  natural  right 
according  to  English  Levellers, 
236  ;  Milton's  theory  of,  245  ;  de- 
nied by  Hobbes,  283;  Spinoza's 
plea  for,  314. 

Fenelon,  his  liberalizing  spirit,  332, 
373,  392. 

Filmer :  his  works  and  method,  255  ; 
on  sovereignty,  256  ;  against  social 
contract  idea,  256 ;  against  popu- 
lar sovereignty,  257 ;  on  patri- 
archal authority,  258-260 ;  his 
rationalism,  261  ;  compared  with 
Bossuet,  326  ;  influence  in  time 
of  Charles  II,  337;  refuted  by 
Sydney,  343  ;  and  by  Locke, 
345. 

Forms  of  government:  Althusius 
on,  67  ;  Bodin  on,  103  et  seq.  ;  Bel- 
larmin  on,  128;  Fortescue  on, 
202  ;  Harrington's  theory  of,  250  ; 
Hobbes's  doctrine  as  to,  290  ;  Spi- 
noza on,  316 ;  Locke  on,  355 ; 
Montesquieu  on,  399. 

Fortescue :  his  works  and  their  spirit, 
201 ;  on  forms  of  government,  202 ; 
on  the  law  of  England,  203 ;  on 
the  rights  of  Englishmen,  204. 

France:  spread  of  Reformed  faith 
in,  6  ;  civil  and  religious  wars  in, 
41-43 ;  controversial  literature  in, 
46 ;  an  absolute  monarchy  (Bodin), 
105  ;  refuses  to  accept  decrees  of 
Council  of  Trent,  125  ;  Fortescue 


452 


INDEX 


on  conditions  in,  204  ;  after  Thirty 
Years'  War,  306 ;  Montesquieu's 
desire  for  reform  in,  432. 
Frederick  II  of  Prussia:  accession 
and  influence,  373,  375  ;  his  politi- 
cal theories,  376. 

Geneva,  Calvin's  system  in,  31-33. 

Gentilis,  on  the  law  of  war,  173. 

Germany,  establishment  of  Protes- 
tantism in,  6 ;  results  of  Thirty 
Years'  War  in,  306. 

Gerson :  doctrines  paralleled  by  mo- 
narchomachs,  77. 

Glanvil,  197. 

Golden  age,  Bodin  on,  84. 

Government :  Mariana  on  origin  of, 
69  ;  distinguished  from  state  (Bo- 
din),  104;  Milton  on  origin  of, 
242  ;  national  and  provincial  dis- 
tinguished (Harrington),  249 ;  dis- 
tinguished from  state  (Locke), 
354-355;  when  most  "  natural " 
(Montesquieu),  398. 

Grotius:  relation  to  precursors,  153  ; 
factors  making  him  influential, 
157  et  seq.  ;  purpose  of  his  work, 
161 ;  on  the  law  of  nature,  164  et 
seq.  ;  on  the  law  of  nations,  171 
et  seq. ;  on  slavery,  178 ;  on  origin 
of  society  and  state,  179 ;  on  sov- 
ereignty, 181  et  seq.;  on  liberty, 
186  ,  relation  to  absolute  mon- 
archy, 187,  189;  to  contract 
theory,  190  ;  criticised  by  Filmer, 
256 ;  antithesis  to  Hobbes,  301 ; 
relation  of  Pufendorf  to,  318; 
Locke's  relation  to,  363  ;  Vico  on 
philosophy  of,  389. 

Gunpowder  Plot,  132. 

Harrington:  method  of,  248;  his 
fundamental  political  principles, 
249 ;  on  the  relation  between  gov- 
ernment and  property,  250 ;  on 
the  organs  of  commonwealth  gov- 
ernment, 251 ;  his  doctrine  of 


Agrarian  and  Rotation,  252  ;  com- 
pared with  Milton,  253  ;  influence 
in  America,  254  note. 

Hemming,  154  note. 

Henry  of  Navarre,  42  ;  excommuni- 
cation of,  131 ;  assassination  of, 
132. 

Henry  VIII  of  England,  3,  206, 207. 

Heresy:  Luther  on  extirpation  of, 
12,  13 ;  Melauchthon  on  suppres- 
sion of,  19 ;  Zwingli's  doctrine 
on,  25 ;  Calvin  burns  Servetus 
for,  33 ;  suppression  of,  taught  by 
Protestant  Reformers  in  general, 
36. 

Hobbes :  Harrington's  view  of,  249  ; 
criticised  by  Filmer,  256  ;  his  life 
and  general  philosophy,  263  et 
seq.;  on  the  state  of  nature,  268 
et  seq. ;  on  natural  rights  and 
law,  272  et  seq. ;  on  origin  of  the 
state,  276  et  seq. ;  his  formula  of 
social  contract,  278  ;  on  slavery, 
281 ;  on  sovereignty,  281  et  seq. ; 
on  liberty,  285  et  seq. ;  on  the  dis- 
solution of  society,  289  ;  on  forms 
of  state,  290  ;  on  law,  293  ;  and 
interpretation,  294 ;  on  state  and 
church,  296  et  seq.  ;  his  antithesis 
to  Grotius,  301  ;  his  individu- 
alistic basis  of  the  state,  302  ;  his 
later  influence  in  political  philoso- 
phy, 303 ;  Spinoza's  resemblance 
to,  310  et  seq.  ;  relation  of  Pufen- 
dorf to,  318  et  seq. ;  denounced 
by  University  of  Oxford,  337 ; 
compared  with  Locke  on  state  of 
nature,  347-348. 

Hooker,  on  natural  law,  210;  on 
origin  of  government,  211. 

Horn,  his  theory  of  divine  right,  332. 

Hotman  (or  Hotoman),  Francis, 
his  Franco-  Gallia,  47. 

Huguenots,  persecution  of,  41. 

Hume :  his  party  politics,  378  ;  on 
the  English  constitution,  379  ;  on 
the  original  contract,  381  et  seq. 


INDEX 


453 


Independents :  distinguished  from 
Presbyterians,  213  ;  attitude  tow- 
ard Long  Parliament,  228  ;  early 
history  of,  230  ;  in  New  England, 
231 ;  out  of  politics  after  1660, 
341 ;  indebtedness  of  Locke  to, 
364.  See  also  Levellers. 

Indians:  theories  as  to  rights  of, 
134 ;  illustrate  state  of  nature 
(Hobbes),  271,  (Locke),  351. 

Individualism:  elements  of,  in  the 
League  and  Covenant,  227 ;  in 
doctrines  of  English  Levellers, 
237  ;  Milton's  argument  for,  244. 

International  law:  ideas  of  in 
Suarez,  141 ;  tendency  of  ins 
gentium  toward,  172  et  seq.j  in- 
fluence of  Grotius  on,  188-189; 
Hobbes  identifies  law  of  nations 
with,  296  note. 

Ireton,  sides  with  army,  235;  op- 
poses Levellers,  237. 

Isidore  of  Seville,  on  law  of  nations 
and  war,  172. 

lus  Gentium,  see  Law  of  nations. 

lus  Naturae,  see  Law  of  nature. 

James  I  of  England  (VI  of  Scot- 
land), 43;  Buchanan  dedicates 
work  to,  56 ;  controversies  of  his 
reign,  212  ;  conflict  with  Parlia- 
ment and  judges,  214  ;  his  theory 
of  divine  right,  215. 

James  II  of  England,  335  ;  policy  as 
to  dissenters  and  Catholics,  338. 

Jesuits :  agree  with  Calvinists  as  to 
despotism,  79 ;  influence  against 
Protestants,  127  ;  opposed  by  Bar- 
clay, 131 ;  repudiate  Mariana's 
De  Eege,  132. 

John  of  Salisbury,  196. 

Justice,  Hobbes' s  conception  of, 
270-271,  273. 

Knox,  John,  6,  39,  56. 

Languet,  see  Vindicice. 
Laud,  Archbishop,  225. 


Law  of  nations:  developed  by 
Spanish  jurists,  133;  Suarez's 
theory  of,  140 ;  Winkler  dis- 
tinguishes from  law  of  nature, 
156  ;  same  distinction  by  Grotius, 

170  ;  history  of,  as  ius  gentium, 

171  et  seq. ;  content,  source  and 
end  of  (Grotius),  174;  tendency 
to  blend  with  law  of  nature,  176  ; 
Hobbes  on,  296  ;  Montesquieu  on, 
398. 

Law  of  nature:  Melanchthon  on, 
16  ;  Bodin  on,  85  ;  a  limitation  of 
sovereignty,  98 ;  developed  by 
Spanish  jurists,  133 ;  Suarez's 
theory  of,  137  et  seq.;  distin- 
guished from  law  of  nations, 
140 ;  limits  supreme  lawmaker 
(Suarez),  146;  as  conceived  by 
Protestant  precursors  of  Grotius, 
154 ;  defined  by  Grotius,  165 ; 
dissociated  from  Revelation,  166  ; 
relation  to  the  laws  of  war,  168 ; 
distinguished  from  law  of  nations, 
170  ;  tendency  to  blend  with  law 
of  nations,  176 ;  Fortescue  on, 
201 ;  distinguished  from  right  of 
nature  (Hobbes),  272 ;  precepts 
of  (Hobbes),  273  et  seq.;  not  true 
law  (Hobbes),  276 ;  Hobbes  on 
interpretation  of,  294  ;  on  identity 
with  law  of  nations,  296 ;  Pufen- 
dorf's  theory  of,  320  ;  identified 
with  law  of  nations  (Pufendorf), 
321 ;  Locke  on,  345 ;  limits  legis- 
lature (Locke),  360;  contrast  of 
Vico  to  ideal  of,  388;  Montes- 
quieu's idea  of,  396. 

League,  The  Catholic,  42. 

League  and  Covenant,  The  Solemn, 
226. 

Leges  imperil,  Bodin's  doctrine  of, 
101. 

Leibnitz,  331. 

Levellers :  in  Puritan  army,  234 ; 
theories  as  to  natural  rights,  236- 
237  ;  after  the  Restoration,  340. 


454 


INDEX 


Liberty :  Melanchthon  on,  17  ;  one 
end  of  government  according  to 
Calvin,  28  ;  Bodin's  attitude  tow- 
ard, 87  ;  Grotius  on,  186 ;  a  nat- 
ural right  according  to  Levellers, 
236  ;  Milton  on,  244-245  ;  Hobbes 
on,  285  et  seq. ;  Spinoza  on,  313  ; 
Locke's  definition  of,  346 ;  pre- 
served by  check  and  balance  in 
government  (Bolingbroke  and 
Hume),  379 ;  Montesquieu's 
theory  of,  409  et  seq.  ;  in  relation 
to  climate  (Montesquieu),  420. 

"  Life,  liberty  and  property :  " 
origin  of  the  formula,  222 ; 
Locke's  treatment  of,  346. 

Lilburne,  237  note  240. 

Locke :  provides  for  toleration  in 
South  Carolina,  341 ;  his  life  and 
works,  344 ;  on  the  state  of  na- 
ture and  law  of  nature,  345  et 
seq. ;  on  natural  rights,  346,  364  ; 
on  the  social  contract,  349  et  seq.  ; 
on  sovereignty,  353,  359 ;  on  the 
functions  of  government,  354 ; 
on  forms  of  government,  355  ;  on 
separation  of  powers,  356  ;  on 
supremacy  of  legislature,  360 ;  on 
supremacy  of  the  people,  361 ; 
on  the  right  of  revolution,  362 ; 
his  relation  to  predecessors  and 
contemporaries,  363  ;  on  tolera- 
tion, 365  et  seq.;  his  philosophic 
moderation,  366 ;  his  influence 
on  the  Continent,  374;  followed 
by  eighteenth-century  philoso- 
phers, 380  ;  compared  with  Mon- 
tesquieu on  separation  of  powers, 
412. 

Louis  XIII  of  France,  patron  of 
Grotius,  159,  187. 

Louis  XIV  of  France  :  characteris- 
tics of  his  time,  306  et  seq. ;  makes 
.Bossuet  tutor  of  Dauphin,  325 ; 
conflict  with  Papacy,  330  ;  condi- 
tions in  later  years  of,  332,  369. 

Louis  XV  of  France,  392. 


Luther:  attitude  toward  Anabap- 
tists, 4  ;  political  doctrines,  7  ; 
attacks  on  the  Papacy,  8 ;  on  the 
canon  law,  9;  doctrine  of  pas- 
sive obedience,  11, 14  ;  on  dealing 
with  heresy,  12, 13. 

Machiavelli :  suggested  by  Mariana, 
74  ;  relation  of  Bodin  to,  85,  121 ; 
refuted  by  Suarez,  147  ;  followed 
by  Harrington,  248  ;  Hobbes  com- 
pared with,  301 ;  admired  by 
Spinoza,  317  ;  likeness  of  Sydney 
to,  344  ;  attacked  by  Frederick 
the  Great,  376 ;  resemblance  of 
Vico  to,  389;  compared  with 
Montesquieu,  409,  429. 

Magistrates  :  have  duty  of  resisting 
tyrant  (Calvin),  30,  ( Vindicice) , 
51 ;  Althusius  on,  64  ;  relation  to 
sovereign  (Bodin),  115 ;  Milton 
on  power  of,  242.  See  also 
Ephors. 

Magnates,  see  Magistrates. 

Majority  rule,  opposed  by  Milton, 
247 ;  Filmer  on,  257  ;  in  Hobbes's 
theory,  279,  283  ;  Locke  on,  350. 

Mariana:  on  state  of  nature,  68; 
on  origin  of  government,  69 ;  on 
tyranny  and  tyrannicide,  70-71 ; 
on  limited  monarchy,  72 ;  on 
policy  and  administration,  73-74  ; 
work  repudiated  by  Jesuits,  132. 

Marsiglio,  followed  by  monarcho- 
machs,  76. 

Mary,  Queen  of  Scots,  40;  her 
troubles  in  Scotland,  43. 

Melanchthon  :  contrast  with  Luther, 
14,  15 ;  on  natural  right  and  nat- 
ural law,  16  ;  on  private  property, 
17  ;  on  liberty  and  slavery,  18 ; 
on  the  basis  and  functions  of 
secular  government,  18 ;  on  her- 
esy and  blasphemy,  19  ;  on  forms 
of  government,  21 ;  on  passive 
obedience,  22 ;  on  tyrannicide, 
22  ;  preference  for  aristocracy,  23. 


INDEX 


455 


Milton  :  effect  of  his  writings,  241 ; 
on  origin  of  government  and  king- 
ship, 242 ;  on  the  right  to  depose 
kings,  243  ;  on  liberty,  244 ;  on 
freedom  of  expression,  245;  on 
form  of  government,  246-247 ; 
compared  with  Harrington,  248, 
253 ;  criticised  by  Filmer,  257  ; 
contrast  of  Hobbes  with,  as  to 
liberty,  285;  resemblance  of 
Spinoza  to,  316 ;  compared  with 
Locke  on  toleration,  366. 

Mixed  form  of  government,  Althu- 
sius  on,  67  ;  Bodin  on,  104 ;  Bel- 
larmin  on,  129  ;  Hobbes  on,  290  ; 
Hume  and  Bolingbroke  on,  379  ; 
Vico  on,  387. 

Monarchy  :  Calvin  on  limited,  30 ; 
based  on  contract  between  king 
and  people,  50  et  seq.  ;  Althusius 
on  nature  of,  65  ;  Mariana's  pref- 
erence for,  70  ;  and  theory  of,  72  ; 
Bodin's  three  species  of,  106  ;  his 
preference  for,  108 ;  Bellarmin 
on,  128  ;  Suarez  on,  144  ;  Grotius's 
attitude  toward,  189  ;  Fortescue's 
classification  of,  202  ;  absolute,  in 
England  under  the  Tudors,  205 ; 
James  I  on,  215  et  seq. ;  Parlia- 
ment's theory  of,  in  England, 
220 ;  Harrington's  classification 
of,  250  ;  Hobbes's  preference  for, 
291 ;  character  in  time  of  Louis 
XIV,  307  ;  Spinoza  asserts  impos- 
sibility of,  316;  Bossuet  on,  327 
et  seq.  ;  Sydney's  view  on,  343  ; 
Vico  on,  386 ;  principle  of,  ac- 
cording to  Montesquieu,  401 ; 
importance  of  nobility  in  (Mon- 
tesquieu), 403  ;  basis  of  commerce 
in  (Montesquieu),  424. 

Montesquieu :  indebtedness  to  Locke 
and  Vico,  389  ;  general  conditions 
of  his  work,  391  et  seq. ;  his 
method,  394  ;  on  laws  in  general, 
395  ;  on  laws  of  nature,  396 ;  on 
state  of  nature,  397  ;  conception 


of  spirit  of  the  laws,  398 ;  on 
forms  of  government,  399  et  seq.  ; 
on  the  principles  of  governments, 
400  ;  on  laws  in  relation  to  forms, 
402  ;  on  laws  in  relation  to  prin- 
ciples, 404  ;  on  transformation  of 
governments,  406  et  seq.  ;  on  rela- 
tion of  size  of  state  to  perma- 
nence, 408  ;  his  theory  of  liberty, 
409  et  seq.  /  on  the  separation  of 
powers,  412  ;  on  the  English  con- 
stitution, 414;  on  criminal  law 
and  procedure,  415 ;  on  slavery, 
416 ;  his  theory  of  climates,  418 
et  seq.  ;  on  the  relation  of  the 
laws  to  the  general  spirit  of  a 
people,  423  ;  on  economic  institu- 
tions, 424 ;  on  religion  and  the 
laws,  426  ;  general  relation  to  his 
predecessors,  428  et  seq.;  his  re- 
sort to  barbarous  peoples,  430 ; 
disregards  natural  rights,  431 ; 
aimed  to  reform  French  mon- 
archy, 432 ;  his  later  influence, 
433. 

More,  Sir  Thomas :  Bodin  rejects 
communism  of,  117  ;  resemblance 
of  Campanella  to,  152 ;  his  Utopia, 
207. 

Natural  law,  see  Law  of  nature. 

Natural  right  and  rights :  Melanch- 
thon  on,  16;  Winkler  on,  155; 
relation  of  Independents  to  theory 
of,  228  ;  English  Levellers'  theory 
of,  236 ;  distinguished  from  nat- 
ural law  (Hobbes),  272;  Spinoza 
on,  311 ;  Locke's  theory  of,  346, 
364  ;  persist  in  civil  society,  349  ; 
neglected  by  Montesquieu,  431. 

Nature,  state  of :  Mariana  on,  68 ; 
Grotius  on,  180  ;  Hobbes's  theory 
of,  268  et  seq.  ;  Pufendorf 's  theory 
of,  319 ;  Locke  on,  345 ;  Montes- 
quieu on,  397. 

Netherlands:  spread  of  Reformed 
faith  in,  6  ;  policy  of  Philip  II  in, 


456 


INDEX 


44 ;  revolt  and  independence  of, 
45  ;  influence  on  Althusius,  61 ; 
in  time  of  Louis  XI V,  308  ;  influ- 
ence on  Spinoza,  310. 

New  England,  settled  by  Separa- 
tists, 230;  democratic  tendencies 
in,  231. 

Nigel,  198. 

Nobility:  considered  a  necessary  in- 
stitution by  Bodin,  94;  essential 
institution  in  monarchy  (Montes- 
quieu), 403;  relation  to  com- 
merce (Montesquieu),  425. 

Ockara,  William  of,  196. 
Oldendorp,  154  note  ;  155  note. 
Oxenstierna,  patron  of  Grotius,  169. 

Parliament  (English):  in  the  early 
English  constitution,  193 ;  atti- 
tude toward  Henry  VIII,  206  ; 
toward  James  I,  214 ;  toward 
Charles  I,  219  et  seq. ;  carries 
through  the  Puritan  Revolution, 
224  et  seq. ;  refuses  toleration, 
234 ;  proposed  subordination  of, 
to  people,  239 ;  employed  by 
Cromwell  and  Ireton  to  effect 
revolution,  240 ;  contest  with 
crown  after  Restoration,  335  et 
seq. ;  Locke  on,  358 ;  Boling- 
broke  on,  381. 

Passive  obedience :  Luther's  teach- 
ing, 11,  14 ;  Melanchthon's  doc- 
trine, 22  ;  Zwingli  on,  25  ;  Calvin 
on,  29-30  ;  limits  defined  by  later 
Reformers,  37  ;  in  England  under 
the  Tudors,  206;  in  England 
after  the  Restoration,  254,  336; 
Bossuet  on,  329. 

Penn,  William,  341. 

People :  possess  right  to  set  up  and 
depose  kings,  49  et  seq.  ;  means 
magnates,  not  masses,  51 ;  the 
source  of  law,  57;  Althusius's 
definition  of,  63 ;  Althusius  on 
sovereignty  of,  64 ;  rights  of,  ac- 


cording to  Mariana,  70,  72 ;  as 
understood  by  anti-monarchic 
writers,  77,  79 ;  Suarez  on  sover- 
eignty .of,  144 ;  Grotius  denies 
sovereignty  of,  184 ;  conception 
of,  by  English  Parliament  party, 
220 ;  rights  of,  in  theories  of 
English  Puritan  radicals,  236; 
the  supreme  authority  in  the 
"  Agreement  of  the  People,"  238  ; 
Milton  on  sovereignty  of,  242 ; 
Filiner  against  sovereignty  of, 
256 ;  supreme  as  against  govern- 
ment (Locke),  361 ;  supremacy 
of,  held  by  eighteenth-century 
philosophers,  380. 

Peter  the  Great,  307. 

Petition  of  Right,  222. 

Philip  II  of  Spain,  39  ;  autocracy 
of,  40  ;  project  of,  in  Erance,  43  ; 
policy,  in  the  Netherlands,  44. 

Physical  environment:  Bodin  on 
influence  of,  112  et  seq.  ;  Montes- 
quieu on  influence  of,  418  et  seq. 

Plato  :  Bodin  rejects  communism  of, 
117  ;  relation  of  Suarez  to  ethics 
of,  139 ;  resemblance  of  Campa- 
nella  to,  152 ;  relation  of  Grotius 
to,  166  ;  relation  of  More  to,  208  ; 
compared  with  Hobbes  on  justice, 
270 ;  compared  with  Montesquieu, 
428. 

Polygamy,  Pufendorf  on,  320  ;  Mon- 
tesquieu on,  421. 

Pope:  Bellarmin's  doctrine  as  to 
power  in  temporals,  129 ;  Bar- 
clay's opposition  to  temporal 
power  of,  131 ;  diminished  pres- 
tige of ,  131. 

Presbyterian  ism:  in  Scotland  under 
James  VI,  43  ;  in  England,  212  ; 
established  in  Scotland,  224  ;  es- 
tablished in  England,  226. 

Presbyterians,  distinguished  from 
Separatists,  213. 

Property  :  a  natural  right  according 
to  Melauchthon,  17  ;  to  be  pro- 


INDEX 


457 


tected  by  government  (Calvin), 
28 ;  made  royalty  necessary, 
62-53 ;  secure  against  sovereign 
(Bodin),  100 ;  falls  under  law  of 
nations  (Suarez),  140 ;  More's 
attack  on,  208 ;  a  natural  right 
according  to  Levellers,  236  ;  their 
ideas  as  to  equality  of,  237 ; 
Harrington  on  relation  of  govern- 
ment to,  250  ;  not  secure  against 
sovereign  (Hobbes),  283  ;  Pufen- 
dorf  on,  320  ;  Locke's  theory  of, 
347. 

Protestant  revolt,  see  Reformation, 
Protestant. 

Pufendorf:  relation  to  Hobbes  and 
Grotius,  318  ;  on  state  of  nature, 
319 ;  on  the  law  of  nature,  320  ; 
on  origin  of  state,  322-323  ;  on 
sovereignty,  323-324  ;  his  rational- 
ism, 325  ;  criticised  by  Leibnitz, 
331  ;  Locke's  indebtedness  to, 
363  ;  compared  with  Montesquieu, 
428. 

Puritans,  see  Presbyterians,  Inde- 
pendents. 


Reformation,  Catholic,  7 ;  general 
character  of,  124  et  seq. 

Reformation,  Protestant :  philo- 
sophical character  of,  1-2 ;  po- 
litical questions  involved  in,  3  ; 
strengthened  absolute  monarchy, 
5 ;  transition  from  Lutheran  to 
Calvinistic  stage,  5 ;  geographic 
limits  of,  6 ;  promoted  national 
idea,  35  ;  promoted  political  abso- 
lutism, 36  ;  completed  in  England 
under  Elizabeth,  208. 

Reformers,  Protestant :  against  Ana- 
baptists, 4 ;  allied  with  govern- 
ments, 5 ;  relation  in  philosophy 
to  the  schoolmen,  34  ;  taught 
respect  for  rulers,  35 ;  taught 
suppression  of  heresy  by  govern- 
ment, 36 ;  tendency  to  limit  pas- 
sive obedience,  37. 


Representative  government,  scheme 
of,  in  "  Agreement  of  the  People," 
239. 

Resistance,  right  of:  preached  in 
France  by  both  Catholics  and 
Protestants,  46 ;  in  Vindiciaz  con- 
tra Tyrannos,  49  et  seq.;  Althu- 
sius  on,  65 ;  Mariana  on,  70 ; 
denied  by  Grotius,  180,  186  ;  ad- 
vocated by  Englishmen,  209  ;  pro- 
vided for  in  "Agreement  of  the 
People,"  239  ;  denied  by  Hobbes, 
283;  Locke's  version  of,  362; 
maintained  by  Bolingbroke,  381. 

Revolution  of  1688,  practical  poli- 
tics of,  335  et  seq. 

Richelieu :  relations  with  Grotius, 
159  ;  policy  of,  306. 

Roman  law:  use  made  of  in  the 
Vindicias,  50-53  ;  Bodin' s  family 
law  based  on,  87  ;  theory  of  civil 
associations  based  on,  91 ;  gen- 
eral influence  on  Bodin,  122  ;  on 
Suarez,  144 ;  traced  to  divine 
source  (Oldendorp),  155  note ; 
development  of  law  of  nations 
from,  171  et  seq.;  compared  with 
English  law  (Fortescue),  203-204. 

Rousseau,  resemblance  of  Suarez 
to,  144. 

St.  Pierre,  Abb<5  de,  373,  392. 

Salmasius :  Milton's  reply  to,  241 ; 
on  divine  right,  255. 

Scotland:  establishment  of  Protes- 
tantism in,  6 ;  conflict  between 
Presbyterianism  and  prelacy  in, 
43;  overthrow  of  episcopacy  in, 
224. 

Separation  of  powers,  Locke  on, 
356  ;  Montesquieu  on,  412. 

Separatists,  see  Independents. 

Servetus,  executed  for  heresy,  33. 

Slavery :  Melanchthon  on,  18 ; 
Bodin's  repudiation  of,  91  ;  falls 
under  law  of  nations  (Suarez), 
140;  justified  by  Grotius,  178; 


458 


INDEX 


Hobbes  on,  281 ;  Pufendorf  on, 
320  ;  Locke's  view  of,  346  ;  Mon- 
tesquieu on,  416. 

South  Carolina,  freedom  of  wor- 
ship in  constitution  of,  341. 

Sovereignty  :  Althusius  on,  63-64 ; 
defined  by  Bodin,  96  ;  relation  to 
law,  97^98 ;  relation  to  revolution 
(Bodin),  109_;  naturally  in  whole 
community  (Suarez),  143;  con- 
ceived as  chief  lawmaking  power 
(Suarez),  145 ;  Grotius's  theory  of, 
181 ;  of  people  sustained  by  Mil- 
ton, 243 ;  Hobbes's  theory  of,  281 ; 
Spinoza  on,  313  ;  Pufendorf  on, 
323 ;  Sydney  on,  343 ;  Locke  de- 
fines as  will  of  community,  353  ; 
Montesquieu's  attitude  toward, 
411. 

Spain:  an  absolute  monarchy 
(Bodin),  105;  jurisprudence  of, 
in  sixteenth  century,  133;  after 
Thirty  Years'  War,  306. 

Spinoza:  influences  producing  his 
philosophy,  308-310 ;  likeness  to 
Hobbes,  310  ;  on  natural  right, 
311 ;  on  origin  of  state,  312 ;  on 
sovereignty  and  liberty,  313-314  ; 
on  freedom  of  expression,  315 ; 
on  forms  of  government,  316 ; 
Locke's  indebtedness  to,  363; 
compared  with  Locke  on  tolera- 
tion, 366. 

State  of  nature,  see  Nature. 

Suarez :  relation  to  Aquinas,  135  ; 
definition  of  law,  136  ;  of  law  of 
nature,  137 ;  distinguishes  law  of 
nature  from  law  of  nations,  140 ; 
develops  ideas  of  international 
law,  141 ;  his  theory  of  human 
government,  143  ;  resemblance  to 
Rousseau,  144 ;  on  papal  power 
in  secular  affairs,  145  ;  on  govern- 
mental contract,  146 ;  on  taxa- 
tion, 147  ;  influenced  Grotius  on 
sovereignty,  181  ;  compared  with 
Montesquieu,  428. 


Suffrage,  a  natural  right,  according 
to  English  Levellers,  236. 

Swift,  a  Tory  leader,  372. 

Switzerland,  establishment  of  Prot- 
estantism in,  6. 

Sydney :  opposes  Charles  II,  342  ; 
on  origin  and  end  of  government, 
343 ;  compared  with  Machiavelli, 
344. 

Territory,  relation  of  extent  of,  to 
form  of  government  (Montes- 
quieu), 408. 

Thirty  Years'  War,  influence  on 
Grotius,  160__e£  seq.;  results  of, 
305. 

Thomasius,  331,  373. 

Toleration :  Castalion's  theory  of, 
36 ;  More  on,  208  ;  Roger  Will- 
iams's  plea  for,  233 ;  leaning  of 
Hobbes  to,  299  ;  tendency  to,  in 
Peace  of  Westphalia,  306  ;  Spinoza 
on,  316;  at  Revolution  of  1688, 
340 ;  in  Pennsylvania  and  South 
Carolina,  341 ;  Locke's  theory  of, 
365 ;  Montesquieu  on,  426. 

Topography,  see  Physical  Environ- 
ment. 

Tories,  early  ideas  of,  336;  princi- 
ples after  Revolution,  371-372. 

Trent,  Council  of,  6 ;  questions  at- 
tending its  meeting,  124  ;  its  de- 
crees, 126. 

Tyrannicide  :  Melanchthon  on,  22  ; 
no  right  of  individuals,  55  ;  Bu- 
chanan's theory  of,  58-60;  Ma- 
riana1 s  theory  of,  70  ;  action  of 
Jesuits  concerning,  132 ;  Milton 
on,  243. 

Tyrant :  defined  as  ruler  who  denies 
religious  liberty,  45 ;  as  one  who 
violates  contract  with  people,  54  ; 
right  to  depose  belongs  to  mag- 
nates, not  masses,  54-55 ;  Bu- 
chanan on,  58  ;  Althusius  on,  65 ; 
Mariana's  definition  of,  70;  Bo- 
din's  conception  of,  100-106. 


INDEX 


459 


Utrecht,  Peace  of,  Continental  con- 
ditions following,  370. 

Vauban,  333. 

Vico :  his  originality,  374  ;  scope  of 
his  philosophy,  385  ;  on  forms  and 
sequence  of  government,  386 ;  con- 
trast with  school  of  natural  law, 
388  ;  relation  to  predecessors  and 
to  Montesquieu,  389. 

Vindicice  contra  Tyrannos :  on  the 
right  of  disobedience,  48 ;  on  the 
right  of  resistance,  49  et  seq.  ;  on 
contract  as  basis  of  government, 
49,  53 ;  on  deposition  of  tyrants, 
54-55 ;  theory  adopted  in  Scot- 
land, 224. 

Voltaire:  opposed  to  absolutism, 
304 ;  on  the  age  of  Louis  XIV, 
306  ;  liberalizing  influence  of,  373  ; 
criticism  of  censorship,  392-393. 

Voting :    Harrington     on     secrecy 


in,  252 ;  Montesquieu  on  same, 
402. 

Westphalia,  Peace  of,  305. 

Whigs  :  early  ideal  of,  336,  342  ;  re- 
lation to  Locke's  philosophy,  367  ; 
principles  after  Revolution,  371- 
372. 

William  of  Orange,  307  ;  ruler  of 
Netherlands,  309 ;  accession  to 
English  throne,  339. 

Williams,  Roger,  his  plea  for  free- 
dom of  conscience,  232. 

Winkler,  on  law  of  nature,  155 ;  on 
law  of  nations,  156. 

Wolff,  373 ;  his  political  theories, 
375. 

Wycliffe,  196. 

Zurich,  Zwingli's  work  in,  24-25. 
Zwingli :  attitude  toward  Anabap- 
tists, 4, 25 ;  work  in  Zurich,  23-24. 


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